The formation and amendment of federal constitutions in a Westminster-derived context

The formation and amendment of federal constitutions in a Westminster-derived context Abstract This article discusses the formation and amendment of federal and federal-like constitutions in a Westminster-derived or post-Westminster context. The four countries considered are Canada, Australia, India, and the United Kingdom. They are chosen for comparison due to their common historical relationship to Britain and the exercise by the British Parliament of sovereign legislative and constitutive authority over their respective territories. While Canada, Australia, and India are today constitutionally independent of Britain, and while substantial autonomy has been conferred on the devolved parliaments of Scotland, Wales, and Northern Ireland within the UK, each country has secured such independence and autonomy differently. Similarly, the constitutional relationship between the federated polity and its constituent polities in each of these countries has evolved in unique ways. This mixture of “similarity” and “difference” offers an opportunity to isolate the potential effect of particular features of the four constitutional systems and to consider the systemic effect those features might have within federal and federal-like constitutions more generally. It is argued that the mechanisms of constitutional amendment within the four countries are best understood in terms of competing locations of effective constitutive authority, as displayed in the processes by which each federal or federalized constitution was originally established and continues to evolve. Approaching the question this way, the uniquely context-dependent nature of the bargains that underlie the formation of federal and federal-like constitutions can be incorporated into a comparative theory that offers a general account of the formation and amendment of such constitutions having broad explanatory power. 1. Introduction Constitutional change is a result of complex interactions involving many elements. While its primary drivers are executive action, legislative enactment, judicial interpretation, and formal constitutional alteration, its possibility and direction are shaped by wider contextual factors, such as history, culture, and values. Constitutional change can be initiated by political elites and consummated by the populace, but not necessarily so. The mechanisms of constitutional change are numerous and can be combined in various ways.1 It has been customary to understand constitutional change in terms of a series of oppositions: rigid v. flexible, formal v. informal, elitist v. popular, incremental v. episodic, legal v. extra-legal, and so on.2 Each opposition focuses on a particular issue. How difficult is constitutional change? By what mechanisms can it occur? Which political actors are able to effect it? How frequently does it occur? Can it occur through extra-legal means? While these questions are profoundly important, they are liable to distract attention from the defining set of questions that characteristically arise in federations, which concern the constitutive relationship between the federation and its component states. Constitutional change within federal systems can be analyzed in terms of concepts such as rigidity and flexibility, formality and informality, and so on, but these issues are generic to all constitutional orders. The specific problem that federalism raises concerns a different question, the question of the constitutive relationship between polity and polities. Federations are characterized by this complicating two-fold character, deeply embedded in the processes by which they are formed, the institutions through which they operate, and the mechanisms by which they change and evolve.3 All the other oppositions deal with the state simpliciter, presupposing a unitary conception of the state, and are for this reason indifferent to the plurality of political communities that constitute a federal system. And this is highly misleading when it comes to federalism. We cannot begin to understand the dynamics of constitutional change in federations without grappling with the problem of the relationship between the federalized polity and its component polities.4 Discussion about constitutional change often revolves around the location, or locations, of constituent power or authority,5 for it is difficult to separate the question of constitutional change from the question of constitutional origin.6 Formal constitutional amendment clauses don’t necessarily recapitulate the constituent authority upon which a constitution is founded, but they come close.7 Is the amendment clause a constituted power or a special kind of constituent power? It depends on which way you look at it. Amendment clauses appear within the texts of constitutions alongside all the other provisions. As such, they seem to be a kind of constituted power. However, they offer a means by which the constitution itself can be altered, which is tantamount to a kind of constituent power. And yet, most amendment clauses prescribe procedures that are different from those used when the constitution was created. Do they therefore displace the constituent power, or somehow coexist with it? Most constitutions do not answer these particular questions explicitly, and they are rarely litigated. As a consequence, discussion about the location of constituent authority and its relation to amendment procedures is usually conducted in an academic context and is heavily laden with constitutional theory and normative commitments. All of this is complicated in federal systems by the question of polity and polities. Is the constituent authority that lies behind a federation best conceived in unitary or plural terms, or somehow both? To what extent does the unity and plurality of the political order shape the amendment procedure stipulated in the constitution?8 And does it make a difference if a federation is aggregative or devolutionary in origin?9 Each federal system has unique characteristics and debates over mechanisms of constitutional change are formulated in terms specific to each country. Theory-laden as they are, such debates often produce widely varying views as to the location(s) of constituent authority and the means by which a constitution can formally (or informally) be amended. Because they are theory-laden, and rarely litigated, such debates are also seemingly interminable. A federal political system can be politically stable and yet harbor profound disagreements about the constituent authority on which it is founded and the means by which its constitution can legitimately be altered. From time to time such disputes can erupt into explicit political, constitutional, and even military conflict. Take the USA as an example. Although the preamble to the US Constitution appeals for its authority to “We the People of the United States,” it is far from a settled question exactly who these people are, or were. According to Justice Kennedy in U.S. Term Limits, Inc. v. Thornton, “the whole people of the United States asserted their political identity and unity of purpose when they created the federal system.”10 In his dissenting judgment in that case, however, Justice Thomas maintained that “[t]he ultimate source of the Constitution’s authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.”11 The debate is an old one.12 It can be traced to the very beginnings of the federal republic, and it underlay the competing constitutional jurisprudences marshalled by the two sides in the American civil war.13 This article offers an explanatory theory of the formation and amendment of federal constitutions based on a small-N comparison of Canada, Australia, India, and the United Kingdom. These countries are chosen as a set of “most similar cases” by virtue of their historical relationship to the British Parliament, which asserted and exercised sovereign legislative and constitutive authority over their respective territories at one time or another. While the first three are now constitutionally independent of the United Kingdom, and while substantial autonomy has been conferred on the devolved parliaments of Scotland, Wales, and Northern Ireland within the United Kingdom, such independence and autonomy were secured in different ways, just as the federal or quasi-federal system of each country has also evolved in constitutionally unique ways.14 This mixture of “similarity” and “difference” offers an opportunity to isolate the potential effect of the unique features of each federation—particularly in relation to the location of constituent authority within the federation, especially focusing on the respective roles of the component polities and the federalized polity in the formation of the federal system.15 In this article I argue that the mechanisms of constitutional amendment within federal systems are best explained by reference to the location or locations of effective constitutive authority presupposed by and operationalized through the legal-political processes by which the federal constitution was originally established and continues to change and evolve. 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 it is possible to identify certain systemic consequences for the textual and structural features of the constitution, including its formal amendment procedures.16 This is because the exact way in which effective constitutive authority is configured operates as a kind of presupposition in constitutional reasoning, as well as a locus of 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 generalized explanation of the formation and amendment of federal constitutions understood comparatively. 2. Canada The Dominion of Canada was established as a “federal union” of the provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in 1867. Although the Canadian Constitution was patriated in 1982, the federation was originally established by, and continues to owe its fundamental constitutional features to, the British North America Act 1867, a statute of the British Parliament. The British North America Act established a federal union of a kind that departed in several important respects from the American model. The prime reason for this was articulated by John A. Macdonald, Canada’s first prime minister. He argued that Canadians ought to avoid what he called the “primary error” of the American Constitution, namely, the idea that “each state reserved to itself all sovereign rights” except for the small number of powers specifically delegated to the federation. He insisted that Canadians must “reverse this process” by establishing a strong central government and conferring on the provincial bodies only those powers necessary for local purposes. Such an approach was necessary, he believed, to avoid the possibility of civil war over the question of secession, as had occurred in the USA. By dividing powers this way, Macdonald said, all “sectional prejudices and interests” could still be legislated for by the local legislatures; however, to ensure “the people of every section” would “feel that they are protected,” the division of powers would be contained in a constitution “founded on an Act of the Imperial Parliament” and adjudicated by the courts.17 The British North America Act accordingly treated the constituent provinces simultaneously as both creatures and constituents of the federation. Thus, the legal effect of the Act was first to divide the existing province of Canada into two separate provinces of Ontario and Quebec, and then unite them with the two existing provinces of Nova Scotia and New Brunswick into “One Dominion” called the Dominion of Canada.18 The Act established parliaments for the two new provinces as well as the Dominion as a whole, and distributed between them legislative powers over a vast array of topics, with any unallocated powers granted to the federal parliament.19 The Imperial Act also established separate executive governments for the two levels of government and made plain that the executive powers formally vested in the governor general and lieutenant governors would be exercised on the advice of ministers responsible to their respective parliaments in accordance with the principles of parliamentary responsible government. Moreover, while the provinces were notionally “represented” in the federal Senate, senators were appointed by the governor general and the Maritime provinces (Nova Scotia and New Brunswick) were treated as a single unit entitled to twenty-four senators as whole (twelve senators each), alongside twenty-four senators for Ontario and twenty-four senators for Quebec.20 The result, on paper, was a relatively centralized federation in which the legislative powers of the Dominion parliament and the capacity of the Dominion government to appoint all vice-regal representatives and judges, as well as the power of the governor general to reserve federal and provincial bills for the Queen’s assent,21 seemed to loom large.22 This treatment of the component provinces—establishing them, dividing them, creating their governing institutions, conferring powers upon them, and placing them under imperial supervision—was premised on the authority of the British Parliament to provide for the governance of its overseas territories. The British North America Act was a statute of the Parliament, and in accordance with the doctrine of parliamentary sovereignty it remained within its legal power to repeal the act or amend it in any respect. As a consequence, it was not thought necessary to include within the Act a procedure by which Canadians themselves might amend it.23 This absence reflected the extent to which the whole scheme was dependent upon the constitutive authority of the Imperial Parliament. From a British point of view—a view shared by most Canadian politicians at the time—the colonies, although self-governing, were subject to the “full power and authority” of the Imperial Parliament to make laws binding them “in all cases whatsoever.”24 Indeed, the territorial identity and constitutional status of the Canadian colonies had long been dependent upon the dictates of imperial policy. The constitutional administration of Britain’s colonies in North America had gone through three broad phases prior to their federation in 1867: a first phase in which the territories ceded by France to Great Britain in 1763 were incorporated into the single province of Quebec (1774), a second phase in which they were divided into the separate provinces of Upper Canada and Lower Canada (1791), alongside the separately established maritime provinces of Newfoundland (1583), Nova Scotia (1710–1763), Prince Edward Island (1746–1763), and New Brunswick (1784), and a third phase in which the provinces of Upper and Lower Canada were re-amalgamated into the single province of Canada under a local, unitary administration (1840).25 These shifts in British policy were responsive to developments within the colonies. The amalgamation of Upper and Lower Canada into a single province had been one of two key recommendations of Lord Durham in his influential report of 1839, which had been commissioned by the imperial authorities following a rebellion in Lower Canada in 1838.26 The other recommendation was that Canadians be granted parliamentary responsible government. For several decades the provinces of Nova Scotia, Prince Edward Island, New Brunswick, and Upper and Lower Canada had enjoyed representative legislatures, but in the 1840s and 1850s the British authorities were eventually convinced that the executive government in each colony should also be responsible to those legislatures. From that time, although executive power remained formally vested in the British Crown, each colonial governor was required, as a matter of political convention, to appoint as his ministers and advisors elected political leaders who had the confidence and support of the relevant colonial parliament. This, in effect, conferred substantial powers of local self-government on the colonies. Their confederation in 1867 cannot be understood apart from this fact. Despite its formal features, the scheme of federation embodied in the British North America Act was the result of closely reasoned negotiations between the political representatives of the provinces at conferences convened at Charlottetown and Quebec in 1864 and London in 1866.27 While there was strong support among the delegates for federation, it was recognized, as George Brown put it, that it would be necessary to find “terms of union that could be made satisfactory” to each province.28 Each province was therefore given one vote in negotiations, Upper and Lower Canada being considered two separate provinces for this purpose.29 The necessary “terms of union” were hammered out in hard bargaining at Quebec, resulting in seventy-two resolutions intended to be submitted first to the provincial governments for approval and then to the British Parliament for enactment into law. The first and most fundamental of the resolutions made clear the guiding principle of the proposed union when it stated that “[t]he best interests and present and future prosperity of British North America will be promoted by a Federal Union under the Crown of Great Britain, provided such Union can be effected on principles just to the several Provinces.”30 As Christopher Moore has emphasized, it was the electorally responsible political leaders of the constituent provinces, not the British authorities, who determined the terms on which confederation occurred in 1867.31 One of the most important elements of that agreement was the division of the province of Canada into the provinces of Ontario and Quebec. Establishment of two separate provinces was deemed necessary to recognize, as Francis Hincks put it, “that the people occupying Upper and Lower Canada were not homogenous; but they differed in feelings, language, laws, religion and institutions, and therefore the union must be considered as between two distinct peoples, each returning an equal number of representatives.”32 This settlement between Ontario and Quebec, as well as the insistence by the Maritime provinces that their rights of local self-government likewise be preserved, gave rise to an understanding that the Canadian union was based upon a “compact” between the provinces.33 This idea, that the federation was fundamentally aggregative in character, was further reinforced by the later admission, on negotiated terms, of the provinces of Manitoba in 1870, British Columbia in 1871, Prince Edward Island in 1873, Alberta in 1905, Saskatchewan in 1905, and Newfoundland in 1949.34 Although the British North America Act was intended to establish a relatively centralized system of government, these diverse social, cultural, and political factors have contributed to important decentralizing trends in Canadian federalism.35 According to imperial law, the British North America Act operated in Canada by its own paramount force, with the consequence that any Canadian federal or provincial statute inconsistent with it was void for repugnancy.36 The Act thus functioned as a kind of constitution for Canada, enforced initially by the Judicial Committee of the Privy Council and later by the Supreme Court of Canada. Decisions of the Privy Council rigorously applying the division of powers between the provinces and the Dominion supported the proposition that, despite the extensive powers conferred upon the Dominion, one of the goals of federation was to protect the autonomy of the provinces, especially Quebec.37 Around the time of World War I, an imperial convention developed that the British Parliament would no longer legislate for any of its self-governing dominions, including Canada and Australia, without their explicit request and consent.38 The convention was soon thereafter formalized into law by the Statute of Westminster 1931,39 which also conferred power on the parliament of each dominion to legislate inconsistently with any British statute insofar as it was part of the law of the dominion.40 In the case of Canada and Australia, one exception to this was that the power did not extend to the British North America Acts 1867–1930 (U.K.) or the Commonwealth of Australia Constitution Act 1900 (U.K.), in order to preserve their functioning as a kind of constitutional law for the two countries.41 In particular, it was necessary to ensure the national parliaments of Canada and Australia, being federal legislatures which shared legislative power with their constituent provinces and states, would not be able to legislate with respect to matters within the authority of those provinces and states. This was relatively straightforward in Canada, where the subject matters falling within the legislative powers of the provinces are specifically identified and exclusive in nature.42 Maintaining the division of power in Canada simply required a stipulation that the powers conferred by the Act on the Dominion and the provinces would be restricted to matters within their respective competences.43 In Australia, as will be seen, a more complicated formula was required. This shifting two-dimensional balance between imperial oversight and local initiative on one hand and constituent polities and federal polity on the other was also expressed in the events that accompanied the eventual patriation of the Canadian Constitution in 1982.44 Technically, this was secured in a manner that preserved legal continuity. Because Canadians lacked legal authority to secure patriation and were not minded to assert it in a revolutionary manner, it was a British statute, the Canada Act 1982, by which the British Parliament effectively abdicated legislative power over Canada while simultaneously conferring upon Canadians a local power to amend their own Constitution.45 However, when the possibility of patriation was being debated within Canada in the early 1980s, the question arose whether the required request and consent for the necessary imperial statute was a matter for the two houses of the Canadian Parliament alone, or would require the request and consent of some or all of the provinces as well. In the Patriation Reference, decided in 1981, a majority of the Supreme Court of Canada held that, as a matter of law, the two houses of the Canadian Parliament could simply request the British Parliament to enact the relevant constitutional amendments, without reference to the provinces.46 However, a different majority considered that a constitutional convention constrained the houses of the federal Parliament from requesting the patriation of the Constitution without a “substantial measure” of provincial support.47 As a consequence of the Court’s decision and accompanying political pressure, the Canadian government was forced to seek and obtain the requisite provincial consent, and in the event nine of the ten provinces (Quebec dissenting) concurred in the patriation of the Canadian Constitution on the terms contained in the Canada Act 1982.48 Quebec’s argument that its consent was required as a matter of convention was rejected by the Supreme Court in the Quebec Veto Reference.49 The objectives of patriation were several. As noted, the Statute of Westminster had affirmed the power of the British Parliament to legislate for Canada while limiting it to circumstances where Canada requested and consented to the enactment of the legislation.50 It also affirmed the power of the Canadian legislatures to enact laws inconsistent with British statutes, while preserving the constitutional status of the British North America Acts 1867–1930.51 The Canada Act took this significantly further. Its primary objective was to bring the authority of the British Parliament to legislate for Canada to a decisive end,52 while nonetheless preserving the British North America Acts as the documentary core of Canada’s Constitution. To achieve this, section 52 of the Constitution Act 1982 (contained as a Schedule to the Canada Act 1982) made clear that, even though the British Parliament had abdicated its authority and the Canadian legislatures had power to enact laws inconsistent with imperial statutes, the constitutional status of the British North America Acts, the Canada Act, and the Constitution Act would be preserved. Moreover, this was achieved not by relying on the background doctrine that colonial statutes repugnant to imperial statutes are void or inoperative (as the Statute of Westminster had done)53 but by declaring that “the Constitution of Canada is the supreme law of Canada” and can only be amended in accordance with the terms of the Constitution itself. This ensured the ordinary legislative powers of the federal and provincial legislatures would not extend to amending Canada’s constitutional statutes.54 It was also necessary to provide some mechanism by which the Canadian Constitution could be amended. Just as patriation had depended upon the request and consent of the federation with the agreement of nine of the ten provinces, the federal nature of the system suggested the new constitutional amendment process would have to involve the active participation of the federal and provincial governments, without enabling either to change the fundamental terms of the federation unilaterally. The Constitution Act accordingly gave the federal and provincial legislatures a jointly shared power to amend the Constitution, the exact level of agreement to be secured depending on the magnitude of the proposed amendment.55 The primary amendment provision requires a proclamation issued by the governor general that is authorized by resolutions of the Senate, the House of Commons, and the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, at least 50 percent of the population of all the provinces.56 However, any amendment that derogates from the legislative powers, proprietary rights, or other rights or privileges of the legislature or government of a province will not have effect in a province the legislative assembly of which expresses its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation.57 In addition, amendments concerning matters of intrinsic interest to all the provinces require the support of the Senate, the House of Commons, and the legislative assembly of every province.58 In this way, each provincial legislature has a guaranteed role in the amendment process, including a capacity to veto any change affecting its particular powers, rights, or privileges.59 Despite the protection these procedures give to the provinces, however, they were unacceptable in some quarters, especially Quebec. In response, the Dominion Parliament enacted a law preventing a Minister of the Crown from proposing a constitutional amendment without first obtaining the consent of each of Ontario, Quebec, British Columbia, two or more of the Atlantic provinces, and two or more of the Prairie provinces.60 The patriation of the Canadian Constitution, although contested by Quebec, resulted in the confirmation and deepening of the federal nature of the system in several respects.61 While preserving legal continuity, the Constitution has been transformed from being almost entirely Westminster-dependent into a fundamental law that recognizes the rights to constitutional self-determination of the Canadian people organized federally in their respective provinces. The transition affected by patriation was Westminster-derived, and did not depend on an overt revolutionary assertion of independence or autochthony, but the change was nonetheless initiated by Canadians, depended on the consent of most of the provinces, and was profound in its effects.62 By enacting the Canada Act 1982 in response to Canada’s request, the British Parliament simultaneously established the constitutional foundations of an independent Canada, abdicated its own authority to legislate for Canada, and conferred on Canadian political institutions an independent, federal, and democratic means of undertaking constitutional amendments in the future. 3. Australia A similar story can be told about the constitutional origins and evolution of the Australian federation. Following the annexation of the eastern coast of Australia by the British Crown in 1770, a succession of parliamentary statutes provided for the government of the annexed territory. By Order in Council of December 6, 1786, made pursuant to the Transportation Act 1784 (U.K.), His Majesty’s colony of New South Wales was declared a place for the reception of “felons and other prisoners,” administered under the authority of governors responsible to Britain alone.63 At its maximum extent the territory of New South Wales included some two-thirds of the continent, but over time separate colonies were established under statutory authority: Van Diemen’s Land (Tasmania) in 1825, Western Australia in 1829, South Australia in 1836, Victoria in 1851, and Queensland in 1859.64 A succession of British statutes also provided for the establishment of governing institutions in each of the colonies, consisting of governors, legislative councils, and eventually legislative assemblies.65 As in Canada, when the six Australian colonies were formed into a federation in 1901, this also occurred through an imperial statute, the Commonwealth of Australia Constitution Act 1900. At the time of its enactment the Act operated in Australia by paramount force and continues to be the basis upon which the Privy Council and especially the High Court of Australia have exercised the power of judicial review to ensure that the governing institutions of the Commonwealth and the constituent states are kept within constitutional bounds.66 Likewise, when the British Parliament eventually abdicated its power to legislate for Australia, this was accomplished, from a British point of view, through the enactment of the Australia Act 1986 (U.K.). By the time that the federation of the Australian colonies was seriously being discussed in the 1890s, most of them had been enjoying the privilege of parliamentary responsible government for some four decades.67 Moreover, each colony had its own Constitution Act which it was able to amend by local statute pursuant to powers conferred by the colony’s founding statutes as well as by the Colonial Laws Validity Act 1865 (U.K.). While technically still subject to the ultimate authority of the British Parliament to legislate for the Empire, the colonies had become accustomed to exercising far-reaching powers of local self-government and constitutional self-determination. As Premier Samuel Griffith, of the colony of Queensland, remarkably claimed in 1890, the Australian colonies had “become practically almost sovereign states, a great deal more sovereign states, though not in name, than the separate States of America.”68 This meant, as the Premier of the colony of South Australia, Charles Kingston, put it: “We are dealing with autonomous States, who have long enjoyed the blessing of self-government, and who should not be asked—and who, if asked, would not be likely to accede to the request—to sacrifice any of their existing powers other than those which it is absolutely necessary should be surrendered in the national interest.”69 Given this self-understanding, representatives of the Australian colonies took a very active role in the formation of the Australian federal constitution, deliberating about every intricacy of its design, drafting its entire text and forwarding it to the British authorities with the expectation that it would be enacted exactly as drafted.70 While the Australian Constitution would formally derive its authority from the Imperial Parliament, it was understood the document was the result of a closely negotiated agreement between representatives of the constituent states.71 The details of that agreement were worked out in two federal conventions held in 1891 and 1897–1898, respectively. At each convention the colonies were equally represented and thus had a constitutively equal role in designing the proposed federation. However, at the first convention the delegates were chosen by the legislatures of each colony and it was intended that any proposed constitution would be referred ultimately to each colonial legislature for approval, while at the second convention the representatives of all but one of the colonies that attended were chosen by direct vote of the people of each colony and it was agreed that the proposed constitution would be referred, ultimately, to the people of each colony for approval prior to being forwarded to the British Parliament for enactment into law.72 Thus, while the principle of equality of colonies was maintained for both conventions, the way in which the colonies were represented was different. In their deliberations, the delegates regarded this as significant. At both conventions the constitutive equality of the colony-states was understood to imply that they ought to be equally represented in the second chamber of the federal legislature.73 Although an articulate minority thought that this ought not to be the case, they were consistently countered by the response that a genuinely federal constitution would—following America and Switzerland, but in contrast to Canada—provide for the equality of representation of the constituent states in the Senate and representation in proportion to population in the House of Representatives. In support of this conclusion it was frequently observed that each colony was an independent political community, making it appropriate for each to be equally represented in the Senate, and that each colony was in a position to insist on its equal rights as a condition of joining the proposed federation.74 As John Quick and Robert Garran later explained, the Senate was the chamber in which the states were represented as “co-equal political communities” and as “corporate parts of the Commonwealth.”75 If the constitutive equality of the colony-states was a principle underlying deliberations in both federal conventions, what was different between them was the exact manner in which delegates were chosen by each colony. This proved to be a distinction with a difference when it came to the design of the Senate and the prescribed means by which the Constitution would formally be amended. Consistent with its nomination by the legislatures of the colonies, the first convention provided that senators be chosen by the state legislatures and stipulated an amendment process requiring any proposal to be approved by an absolute majority of conventions held in each constituent state.76 Duncan Gillies explained that this followed from the proposition that the federation was based on the consent of each colony and that each colony would therefore require, and be entitled to, an equal say in the amendment of the Constitution.77 At the second convention, while the principle of the constitutive equality of the states continued to be insisted upon, the conceptual foundation of the federation was recast in more directly democratic terms. Having been directly elected by the people of four of the colonies, the members of the second convention decided the Senate would be elected directly by the people of each state and the Constitution could only be amended by a referendum which secured the approval of a majority of voters in a majority of states and a majority over voters of the federation as a whole.78 The people of the colonies had played a direct role in electing delegates to the convention and it was accepted that they would also play a direct role in ratifying the Constitution. It followed that the people of each state should also play a direct role in electing their representatives in the Senate and approving any proposed amendments to the Constitution. In this way, the formative basis of the Constitution was regarded as offering both principled and pragmatic reasons for adopting a particular approach to the design of the senate and the amendment process.79 The draft constitution produced by the second convention was enacted into law by the British Parliament in the form of the Commonwealth of Australia Constitution Act in 1900. The preamble to that Act put it succinctly: the “the people” of each of the individually named colonies had “agreed to unite in one indissoluble Federal Commonwealth.” The term “indissoluble” was used to counter the inference that the states might be entitled to secede from the federation, as had been attempted in the USA.80 But although they were aware of the centralization that occurred following the American Civil War and Reconstruction Amendments, the Australians continued to believe that the Australian federation should be founded upon the consent of the people of each colony. In this respect, the makers of the Australian Constitution deliberately adopted the American model, rather than the Canadian. Madison’s analysis in Federalist No. 39 was in this respect highly influential.81 The Commonwealth of Australia Constitution Act 1900 (U.K.) consists of nine sections (known as covering clauses), the last of which contains the “Constitution of the Commonwealth,” which itself consists of 128 sections. While the covering clauses could only be amended by the British Parliament, a local power to amend the Constitution by dual referendum was included, as well as an extraordinary capacity to exercise the powers of the British Parliament within Australia, conferred on the Australian Parliament acting upon the request or with the consent of the state legislatures (§ 51(xxxviii)). Notably, therefore, it was recognized that any exercise of imperial constitutive power within Australia by Australian political institutions would need the consent of both the Commonwealth and the states.82 By drafting a constitution with these characteristics, the Australians openly stated they were seeking to secure almost complete constitutional independence.83 As the balance of power between the Empire and the colonies gradually shifted during the twentieth century, these provisions became increasingly important. As it had for Canada, the Statute of Westminster 1931 (U.K.) gave the Australian Parliament power to legislate inconsistently with any British statute insofar as it was part of Australian law,84 except as necessary to maintain the supremacy of the Australian Constitution and the allocation of powers between the Commonwealth and the states.85 It also acknowledged that the British Parliament would no longer legislate for Australia unless Australia expressly requested and consented to it.86 However, unlike Canada, in Australia the legislative powers of states are general, not specific, and are held concurrently with the Commonwealth’s specific list of powers.87 This is because the logic underlying the Australian federation was rigorously aggregative: the states were conceived of as agreeing to the formation of a federal system in which they would “continue” to exercise their general legislative powers (sections 106 and 107), subject only to specific powers conferred upon the Commonwealth.88 The Statute of Westminster therefore had to prevent the Commonwealth from enacting laws on matters within the legislative authority of the states without giving rise to the inference that those matters consist of an explicitly limited set of topics.89 Somewhat convoluted language was necessary to achieve this.90 The most far-reaching step came in 1986, when the British Parliament finally abdicated all authority to legislate for Australia. The process was comparable to the Canadian experience but reflected the subtly different constitutional status enjoyed by the Australian Commonwealth and its constituent states. Two substantively identical Australia Acts were used, one enacted by the British Parliament upon the request and consent of the Australian Government pursuant to the Statute of Westminster,91 the other enacted by the Australian Parliament upon the request and consent of all of the state legislatures pursuant to section 51(xxxviii) of the Australian Constitution.92 The Australia Acts provided for the termination of the British Parliament’s authority to legislate for Australia.93 Just as the Statute of Westminster had affirmed the power of the Canadian and Australian federal legislatures to make laws inconsistent with imperial statutes, the Australia Acts also affirmed the capacity of Australian state legislatures to make laws inconsistent with imperial statutes.94 But as in Canada, once the federal and state legislatures were freed from imperial restraints, it was necessary to preserve the binding authority of the Commonwealth of Australia Constitution Act.95 It was also necessary to specify how the Australia Acts and the Statute of Westminster might be amended in the future. Consistent with the enactment of the Australian version of the Australia Acts on the basis of the section 51(xxxviii) procedure, it was provided that the Australia Acts and Statute of Westminster can be amended by the Commonwealth Parliament at the request or with the concurrence of all the state legislatures.96 Several Australian judges have suggested that, although at the time of federation the Australian Constitution owed its legally binding force to the sovereign authority of the British Parliament, after the passage of the Australia Acts the Constitution must be understood to derive its legitimate authority from autochthonous sources, such as the ratification of the Australian Constitution by the voters of the Australian colonies in the 1890s.97 Some have even said that “ultimate sovereignty” now rests in the Australian people.98 Notably, however, the process by which the Australian Constitution was patriated, and the new constitutional provisions enacted as part of the patriation package, reflected the fact that Australia is a “federal commonwealth” composed of constituent states.99 As in Canada, the formative basis and evolution of Australia’s constitutional arrangements, including its amendment procedures, have been shaped profoundly by the federal nature of the polity and its substantively aggregative origins. The Constitution may originally have been Westminster-derived, but as the British Parliament’s authority has receded, the federal features of the system have been affirmed, and in important respects strengthened. 4. India Like the Canadian and Australian Constitutions, the Constitution of India emerged out of a colonial context and needs to be understood in the light of the shifting balance of power between the British Empire and the people of India—a vast plurality of peoples, distinguished ethnically, religiously, linguistically, and politically.100 Unlike Canada and Australia, however, the point of departure in India was different: the Constitution was formed after independence, not before it. From a British point of view, the constitutional evolution of India can be traced to a succession of seventeenth-century royal charters establishing the forerunners of what became the East India Company. Although a mercantile body, the East India Company was granted significant powers of governance and military control over its various Indian possessions. These it exercised until the company’s rights were vested in the British Crown pursuant to the Government of India Act 1858, following a major rebellion in 1857–1858 sometimes known as India’s First War of Independence. In this context, the constitutional premise of the British Raj was the assertion of what had been called the “undoubted sovereignty” of the United Kingdom over its Indian possessions.101 As Desika Char has observed, “the supreme power over Indian affairs lay with the British Parliament, and the several authorities administering India exercised only the powers delegated to them by its enactments.”102 The system of British administration of India passed through many iterations, forced upon them by the extraordinarily difficult challenge of governing the densely populated and vastly complex subcontinent. British rule involved various techniques of engagement (trade, regulation, administration, coercion, repression) and unique structures of governance for different parts of the subcontinent (presidencies, major provinces, minor provinces), alongside specially negotiated relationships with a host of princely states which, although internally autonomous, from a British point of view were considered subject to the suzerainty of the British Crown.103 Despite the existence of many local and provincial institutions of administration and governance, the Supreme Court of India described the imperial system as it existed in 1858 as essentially “unitary and highly centralized,” a system in which there was a “chain of responsibility” from the Secretary of State in London, via the Central Government, to the Provincial Governments.104 Professor Keith similarly observed that although local legislatures had been established, their “essential position” was one of “complete subordination in administration and legislation to the centre.”105 The autocratic and centralized nature of British rule in India was somewhat moderated by a succession of Government of India Acts, passed in 1909, 1919, and 1935. The Act of 1909, for example, authorized the governor general to expand the system of legislative councils established in the provinces, while also largely maintaining the central government’s control.106 The Act of 1919 went further, announcing an official policy of “gradual development of self-governing institutions, with a view to the progressive realisation of responsible government in British India as an integral part of the empire.”107 The system of “dyarchy” established by the Act involved the classification of subjects of government administration as either “central” or “provincial,” with provincial matters in turn distinguished into “transferred” subjects administered by local governments responsible to predominantly elected legislative councils, and “reserved” matters administered by the governor and his executive council. The extent of devolution remained limited, however. The governor general had authority to determine the allocation of responsibilities, provincial laws required his assent, and the central legislature could still make laws on any matter, whether central or provincial.108 As the Supreme Court of India later observed, despite this decentralization, the government remained essentially unitary.109 For various reasons, the system of dyarchy was far from meeting the expectations and aspirations of Indian activists, and was replaced by the Government of India Act 1935, which acceded further to Indian demands by devolving power more extensively.110 Indeed, according to Professor Keith, the new scheme exhibited “all the normal characteristics of federal government,” including the existence of a rigid constitution, a division of powers and judicial review.111 However, Keith also remarked that, unlike Canada and Australia, where the federation was created by an agreement among self-governing colonies, in India the provinces had not been self-governing but were already “united under the control of a central government with plenary powers” and were therefore “wholly subordinate divisions of a unitary state.”112 This had implications for several features of the new scheme. First, the continuing supremacy of the British Parliament was expressly asserted and the Parliament maintained exclusive power to alter the Act.113 Second, although the Act appeared to confer the rudiments of responsible government, there were many “safeguards” which enabled British authorities to intervene when deemed necessary. Third, the method by which legislative powers were federally allocated involved three lists: a list of exclusive central powers, a list of exclusive provincial powers, and a list of concurrent powers. This was very different from what had occurred in the USA and Australia, where the general legislative powers of the existing states “continued” or were “reserved,” subject to the specific competences conferred upon the federal legislature. However, the scheme never really came into effect, largely because the princely states faced the prospect of a significant loss of autonomy and refused to join the federation.114 On the Indian side, the picture was highly complex. Organizations such as the Indian National Congress (established in 1885) and the All-India Muslim League (established in 1906) pursued their particular political goals, ranging from home rule to outright independence, and from communal representation to outright partition. The Purna Swaraj (Declaration of the Independence of India) promulgated by the Indian National Congress in 1930 asserted the “inalienable” rights and freedoms of “the Indian people,” the right of the people to alter or abolish any government that oppresses them, and the proposition that “India must sever the British connection and attain Purna Swaraj, or complete independence.” What exactly this independence would entail and the means to accomplish it were not determined. In 1937, however, the National Congress officially adopted the proposal that an all-India constituent assembly be convened as the means by which the Indian people “as a whole” might exercise their inherent right to constitutional self-determination.115 In the context of World War II, the British finally acceded to Indian calls for a constituent assembly, proposing the assembly settle the terms of a complex, multilayered system involving three subfederations: a group of Muslim-majority provinces in the northwest, a group of Muslim-majority provinces in the northeast, and a group of non-Muslim majority provinces in the south. The National Congress and Muslim League initially accepted the plan, at least in form, and a provisional government was established under the leadership of Pandit Jawharlal Nehru. However, the substance of the plan was not acceptable to either side: the Congress objected to the absorption of certain Hindu-majority regions into the Muslim-dominated northwest, while the League pressed for the establishment of Pakistan as an independent nation. On matters as fundamental as these a compromise could not be reached and the League refused to join the constituent assembly.116 With India on the verge of civil war, the British signalled their intention to withdraw altogether by enacting the Indian Independence Act 1947. The Act relinquished suzerainty over the princely states, partitioned British India into two independent dominions of India and Pakistan, brought to an end the unilateral authority of the British Parliament to legislate for India and Pakistan, and conferred authority upon separate constituent assemblies to establish new constitutions for the two dominions.117 From an Indian point of view, independence had been secured. It was now the task of the Constituent Assembly to draft a new constitution in the name of the Indian people. However, exactly what independence meant, and how the will of the people would be expressed through the Constituent Assembly, remained to be determined. At stake was the highly evocative idea of Swaraj or self-rule. Mahatma Gandhi understood it this way: Independence begins at the bottom. Thus, every village will be a republic or panchayat having full powers. It follows, therefore, that every village has to be self-sustained and capable of managing its affairs even to the extent of defending itself against the whole world. . . . In this structure composed of innumerable villages, there will be ever widening, never ascending circles. Life will not be a pyramid with the apex sustained by the bottom. But it will be an oceanic circle whose centre will be the individual. . . . Therefore the outermost circumference will not wield power to crush the inner circle but will give strength to all within and derive its own strength from it.118 Gandhi was conscious of the idealistic nature of his vision for India. When asked about the capacity of the Constituent Assembly to realize these ideals, he noted, on the contrary, that many others wished for India to have “a strong centre and build the whole structure around it.”119 In the upshot, this latter view prevailed. Succeeding, in a very real sense, to the concentrated powers of governance formerly exercised by British, but now acting in the name of the Indian people, the Constituent Assembly embarked on the challenging task of drafting a new constitution for India. Its claim to act in the name of the people, although contestable,120 was supported to the extent that its members had been chosen by the provincial legislative assemblies or nominated by the princely states, each roughly in proportion to its population.121 From the outset, the Assembly described its objectives as being the establishment of India as an “Independent Sovereign Republic” which derived its “power and authority” from “the people.”122 The overriding objectives of the Constituent Assembly and its working committees, Akhtar Majeed observes, was to “build a united polity out of a highly fragmented and segmented society” and to “develop [a] highly undeveloped country” by building “a modern nation-state.” “[T]he impetus for national unity” was so strong, he points out, that “the subnational identities of citizens were given little consideration.”123 As Bhimrao Ramji Ambedkar, chair of the drafting committee, later put it, the union “was not the result of an agreement by the States to join in a Federation.” Although “the country and the people may be divided into different States for convenience of administration,” he said, “the country is one integral whole, its people a single people living under a single imperium derived from a single source.”124 Accordingly, while it was affirmed that the provinces and states would “retain the status of autonomous Units” within the union, the Constituent Assembly asserted and exercised the power to establish their constitutions and adjust their boundaries.125 The whole process by which the Constituent Assembly was constructed and operated meant the provinces were effectively obliged to be part of the new system of government, and the princely states quickly acquiesced as well. Thus, the provinces and states lacked the strong bargaining power characteristic of federations formed through the aggregation of previously independent states. The result, says Mohit Bhattacharya, was a kind of “devolutionary federation”: a “fundamentally unitary state” which “devolved powers on the units.”126 The consequences for the text and structure of the Indian Constitution were far-reaching. Just as the provinces were represented mostly in proportion to their respective populations in the Constituent Assembly, so representation in the two houses of federal Parliament was largely in proportion to population.127 The legislative and executive powers vested in the institutions of the federal government were extensive, and they included the extraordinary power to overrule the distribution of powers by two-thirds resolution of the Council of States,128 to require state governments to implement federal laws and policies,129 and to intervene in the affairs of states in cases of “emergency,”130 recalling the powers of intervention exercised by British authorities during the colonial era.131 As Ambedkar explained, these features were a deliberate departure from the more “rigid” and “legalistic” federal systems established in the USA and Australia. The Indian Constitution, he said, “can be both unitary as well as federal according to the requirements of time and circumstances.”132 As the Supreme Court of India later observed: The result was a Constitution which was not true to any traditional pattern of federation. There is no warrant for the assumption that the Provinces were sovereign, autonomous units which had parted with such power as they considered reasonable or proper for enabling the Central Government to function for the common good. The legal theory on which the Constitution was based was the withdrawal or resumption of all the powers of sovereignty into the people of this country and the distribution of these powers . . . between the Union and the States.133 The prescribed mechanisms for amending the Constitution followed a similar pattern, reflecting a desire to ensure that the Constitution could be amended relatively easily, again deliberately in contrast to the amendment clauses of the American and Australian constitutions.134 There are three methods by which the Indian Constitution can be changed, all involving enactments by the Union Parliament, either (a) by simple majority, (b) by special majority of two-thirds of both houses, or (c) by special majority of two-thirds of both houses, together with the consent of at least one half of the state legislatures. Remarkably, method (a) can be used by the Union to create new states by amalgamating or dividing the territories of existing states, and to make alterations to the territories of the states generally.135 Method (b) also reflects the limited extent to which the states were given a distinct role in amending the Constitution, noting that representation in the two houses is roughly proportional, not equal among the states.136 Notably, method (c) does operate to protect the states in certain respects, including their representation in the Union Parliament, their role in the election of the President, and the division of executive and legislative powers between the Union and the states.137 But given that the states are not equally represented in the Council of States and the distribution of powers can be overridden in various ways, these protections are much weaker than those in many other federations. As Akhtar Majeed has observed, because the states did not enter the federation as independent self-governing polities, they were not in a position to demand “an inherent right to share in the amending process, except insofar as the Constitution provides for state legislative participation.”138 The Indian Constitution was meant to be flexible. It has been formally amended some 100 times since its establishment in 1950. Many amendments have been highly controversial. Several have been challenged in the Supreme Court, which has responded by developing an extraordinary doctrine of unconstitutional amendments.139 In the earlier cases, the ground of challenge was that certain laws purporting to amend the Constitution contravened Article 13, which provides that “any law” which takes away or abridges the fundamental rights conferred by Part III of the Constitution shall, to the extent of the contravention, be void. Although this argument was initially rejected by the Supreme Court,140 it was controversially accepted in Golak Nath v. State of Punjab.141 Part of the argument in Golak Nath was that, unlike the constitutive authority that had been exercised by the people through the Constituent Assembly, the power to amend the Constitution was merely a special kind of legislative power that must be exercised in a manner consistent with the requirements of Part III. A close majority of 6 to 5 accepted this line of argument, although they applied it only prospectively, leaving existing amendments undisturbed but requiring future amendments not to interfere with the fundamental rights in Part III. The Union Parliament attempted to neutralize Golak Nath by passing the Twenty-fourth Amendment to the Constitution. This amendment altered Articles 13 and 368 to make explicit that nothing in Article 13 would apply to any amendment of the Constitution made pursuant to Article 368 and that the power of the Parliament conferred by Article 368 was an exercise of “constituent power” unlimited by Part III. The Twenty-fourth Amendment was challenged in Kesavananda Bharati Sripadagalvaru v. State of Kerala.142 In what is one of the longest set of judgments ever delivered by a court, the Supreme Court upheld the constitutional amendments and overruled Golak Nath. However, a close majority of 7 to 6 also held that, although the amendment procedure was not limited by the fundamental rights requirements of Part III, it could not be used to interfere with the “basic structure and framework” of the Constitution.143 It is difficult to overestimate the significance of the basic structure doctrine. The Forty-second Amendment, enacted in 1976 during an emergency proclaimed by the Congress government of Indira Ghandi, introduced an extraordinarily large number of changes to the Constitution which expanded the power of the Union and limited the power of the Supreme Court. These included the insertion of two clauses into Article 268, the first providing that no amendment to the Constitution under Article 268 could be “called in question in any court on any ground” and the second declaring there was “no limitation whatever on the constituent power of the Parliament” to amend the Constitution “by way of addition, variation or repeal” pursuant to Article 268. These amendments, which were challenged in Minerva Mills Ltd. v. Union of India,144 were held by the Supreme Court to be contrary to the basic structure doctrine and therefore invalid. The basic structure doctrine depends on the way in which popular sovereignty and constituent power are conceptualized.145 As Chief Justice Sikri put it in Kesavananda, the principles of interpretation to be applied to Article 368 are those appropriate to “a Constitution given by the people to themselves.”146 Justices Shelat and Grover similarly reasoned from the premise that the “basic theory” of the Constitution is that the “Pouvoir Constituent” is vested in the people and was exercised by the Constituent Assembly, a premise which supported the conclusion that the power conferred by Article 368, being limited, could not be enlarged “by the body possessing the limited power.”147 As such, the basic structure doctrine appears to rest on a hierarchical relationship between (1) the constituent authority presupposed by the Constitution and (2) the special amendment processes stipulated by the Constitution, such that while the “ordinary” provisions of the Constitution can be altered by the stipulated amendment processes, the basic structure can only be altered by the constituent authority itself. Of course, this begs as many questions as it answers, especially regarding the exact identity of the constituent authority and how, in practice, it might ever be invoked. Although the federal features of the Indian Constitution are now receiving more attention and protection,148 it is difficult to conceive the constitutive authority upon which the Constitution is founded other than in fundamentally unitary terms. 5. United Kingdom The United Kingdom has long been classified as a unitary state. However, such has been the transformation introduced by the system of devolution that it is not outside the bounds of credibility to debate whether it may have been transformed into a kind “federation” or, at least, how close it is to becoming one, and whether such a transformation should occur.149 Scotland, Northern Ireland, and Wales each now has its own directly elected legislature and responsible government exercising independent powers of self-government over legally defined matters, the scope of which is determined by the Supreme Court of the United Kingdom acting as the final adjudicator of disputes concerning such matters. What is more, the devolution arrangements are laid down in statutes enacted by the British Parliament which it is politically, if not legally, unable to amend without the consent of the devolved governments.150 Such features have led no less an authority than Vernon Bogdanor to conclude that the United Kingdom is already, in substance, a kind of federation.151 There remain important differences, however, between the system of devolution in the United Kingdom and most mainstream federations, as Ronald Watts has documented.152 Most prominent among these is the absence of a supreme written constitution, binding both the British Parliament and the devolved legislatures.153 The devolution statutes are binding on the devolved legislatures by virtue of the authority of the British Parliament. It may be politically impossible for the Parliament to amend the devolution statutes without the agreement of the relevant constituent political communities,154 but it remains within the Parliament’s legal power to do so, and could certainly happen in extraordinary circumstances, as has occurred in Northern Ireland.155 Second, while constitutional asymmetry is a characteristic of many federal systems, British devolution is asymmetrical in a very fundamental sense. Not only is each devolution statute tailored to the particular constitutional and political conditions of each of the three devolved communities, but England, which contains 84 percent of the population of the United Kingdom, is governed directly by the Parliament at Westminster and has no devolved institutions of its own.156 As a consequence, the people of the devolved communities elect representatives to the British Parliament who have the right to vote on laws affecting only England, whereas laws enacted by the devolved legislatures remain matters for representatives elected by the people of Scotland, Northern Ireland, and Wales, respectively.157 Moreover, none of the devolved communities are entitled to special territorial representation as such within the British Parliament, unlike most federations, where representation of the states within the federal legislature is a common feature. The constitutional premise of British devolution is the political identity of the United Kingdom as a union of England, Wales, Scotland, and Northern Ireland established by a succession of acts passed by the respective parliaments of those countries.158 These statutes, and the treaties they implemented, created a political union governed under the ultimate authority of the Parliament at Westminster. According to orthodox legal theory, the British Parliament is the sovereign lawmaking institution within the United Kingdom. Although the United Kingdom is a union of four previously independent nations, the union is governed by a Parliament possessing effectively sovereign legislative power.159 Devolution in the United Kingdom is accordingly premised on the authority of the Westminster Parliament to establish the devolved legislatures and governments and to bestow powers upon them. The constitutive documents of British devolution are statutes formally enacted in accordance with the ordinary legislative processes of the Parliament.160 The original power of the Parliament to legislate for the United Kingdom of Great Britain and Northern Ireland is taken for granted, and its continuing power to legislate for Wales, Scotland, and Northern Ireland is explicitly affirmed in the devolution statutes,161 with the consequence that amendments to the statutes also have to be enacted by the British Parliament, save to the very limited extent that a devolved legislature has been granted power to amend them directly.162 As in Canada, Australia, and India, the devolution statutes were enacted by the Parliament in response to local agitation. This was certainly the case for the grant of home rule to Ireland and later Northern Ireland.163 Indeed, such was the effectiveness of Irish resistance during the Irish War of Independence that the United Kingdom was forced in 1921 to enter a form of treaty with representatives of the nascent Irish Free State to bring hostilities to an end. These events gave rise to competing interpretations of the nature of the Constitution of the Irish Free State (1922),164 an Irish interpretation attributing its binding force to its adoption by the self-professed Third Dáil Eireann sitting as a constituent assembly and a British interpretation according it legal force by virtue of its enactment as a schedule to the Irish Free State (Constitution) Act 1922.165 The Anglo-Irish Treaty and the Irish Free State (Agreement) Act 1922 also gave Northern Ireland the right to opt out of being part of the new Irish Free State, which it exercised. In the context of continuing troubles in Northern Ireland, British statutes granting devolved powers of self-government to Northern Ireland have even provided that Northern Ireland may cease to be part of the United Kingdom and become part of a united Ireland with the consent of the majority of its people voting in a plebiscite.166 Scottish devolution was also fomented by local agitation, led by organizations such as the Scots National League, Scottish National Party, Scottish Covenant Association, Campaign for a Scottish Assembly, and Scottish Constitutional Convention. Documents prepared by the last two of these organizations, A Claim of Right for Scotland (1988) and Scotland’s Parliament, Scotland’s Right (1995), set out the case for devolution in radical terms. The first document contained an outright assertion of “the sovereign right of the Scottish people to determine the form of government best suited to their needs” and committed its signatories to the project of agreeing on a scheme for a Scottish Parliament, mobilizing “Scottish opinion,” securing “approval of the Scottish people,” and asserting “the right of the Scottish people” to ensure its implementation. The second document presented a blueprint for Scottish devolution which crystallized the resolve of the British Government to develop a White Paper on the topic, Scotland’s Parliament (1997), and ultimately to enact the Scotland Act in 1998 following the positive result of a referendum on devolution held in Scotland in 1997. The use of referendums to enable the people of each of the devolved communities to express their will on questions of devolution and independence has become an established practice, with referendums held in Scotland in 1979, 1997, and 2014; Wales in 1979, 1997, and 2011; Northern Ireland in 1973 and 1998; and North East England in 2004, in addition to referendums on membership of the European Community in 1975 and the European Union in 2016. The Scottish Government’s argument that it was within the competence of the Scottish Parliament to hold a referendum on Scottish independence,167 and the willingness of the British Government to facilitate the referendum, held in 2014, are recent illustrations of the way in which nationalist politics within the United Kingdom has influenced the exercise of the sovereign powers formally vested in the British Parliament. The undertakings given by the leaders of the three main political parties before the independence referendum, the report of the Smith Commission, and the resulting Scotland Act 2016 enacted by the Parliament offer yet further evidence of how agitation for rights to local self-government can precipitate considerable constitutional change in a federative direction. As to the constitutive foundations of the system, while any future changes to the devolution arrangements in the United Kingdom must be enacted by the British Parliament, well-established constitutional conventions require that such laws only be enacted with the consent of the devolved legislatures. The right of the peoples of Scotland, Wales, and Northern Ireland to determine their constitutional destinies is thus acknowledged, but it is also recognized that the British Government and Parliament, representing the people of the United Kingdom as a whole, also have an essential role in settling the fundamental features of the British Constitution. In this respect, the situation in the United Kingdom resembles that of Canada and Australia prior to the enactment of the Statute of Westminster 1931. The constitutional experience of Canada and Australia demonstrates that Westminster-derived systems of government can secure substantial degrees of constitutional autonomy and independence, and that this can occur through processes that do not involve an abrupt revolutionary assertion of autochthony. It also demonstrates that such processes can establish the ensemble of institutions, powers, and procedures necessary for a functioning federal system, including a binding, written constitution. British devolution resembles such systems insofar as it establishes devolved legislatures and responsible governments exercising independent powers of government pursuant to the devolution statutes. However, the British system is significantly different from the Canadian and Australian federations in that it does not have a legally entrenched written constitution, there are no devolved institutions of governance for England, and there is no system of territorial representation of the constituent nations within the British Parliament. Accordingly, many of the proposals for reform in the aftermath of the Scottish independence referendum were directed to moving the British system distinctly closer to the Canadian and Australian systems, and changes introduced by the Scotland Act 2016 go at least some way toward securing these goals. Many of the remaining disagreements about exactly what further changes should be implemented in the United Kingdom concern features that these federal systems have and the British system lacks.168 The day after the Scottish independence referendum, the British Prime Minister announced the establishment of a Commission under Lord Smith of Kelvin aiming to secure an agreement among all parties represented in the Scottish Parliament concerning further powers to be devolved to Scotland. Notably, the recommendations of the Smith Commission were premised on “the sovereign right of the people of Scotland to determine the form of government best suited to their needs.”169 Its first two recommendations were that the devolved institutions of government in Scotland be recognized as “permanent” institutions and that the Sewel Convention be placed on a statutory footing.170 The British Government showed itself willing to implement these recommendations.171 In the Scotland Act 2016, enacted in response to the referendum, the Scottish Parliament and Government were said to be “permanent part[s] of the United Kingdom’s constitutional arrangements,” it was “declared” that the Scottish Parliament and the Scottish Government are not to be abolished without the consent of the Scottish people in a referendum, and it was “recognised” that the British Parliament would “not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”172 These were significant concessions. However, there were objections. It was argued that merely to “recognize” and “declare” these matters weakened the effect of the clauses, for they were not positive enactments having full legal force.173 Notably, the relevant provision of the Statute of Westminster was similarly indirect in its language. Rather than baldly purport to cut down the sovereign legislative authority of the Imperial Parliament, it stated that no future Act of the British Parliament would extend or be deemed to extend to a Dominion “unless it is expressly declared in that Act that the Dominion has requested, and consented to, the enactment thereof.”174 By comparison, the Canada Act 1982 and the Australia Act 1986 (somewhat like the Indian Independence Act 1949), were much more categorical: they unequivocally declared that no future British statute would extend to Canada or Australia as part of its law.175 The task of replicating a similar effect within the realm of Great Britain is complicated by two important factors. One is that when the Canadian and Australian Constitutions were patriated, the jurisdiction of the Privy Council to hear appeals from Canada and Australia had been brought to an end, making Canadian and Australian courts the final judicial authorities within their respective jurisdictions.176 Even if British courts might be bound to give effect to a British statute purporting to amend or repeal the Canada Act or the Australia Act, Canadian and Australian courts would not be so obliged and have in fact indicated that they regard the authority of the British Parliament to be permanently extinguished and the theoretical foundation of their respective constitutions to be effectively autochthonous.177 This state of affairs does not exist within the United Kingdom, where the Supreme Court remains the court of ultimate appeal from the courts of England and Wales, Scotland, and Northern Ireland. The second and more fundamental complication lies in the continuing role of the British Parliament, not only as the general legislature for the United Kingdom but as the sovereign legislature upon which the entire system of devolution officially depends. In the case of the United Kingdom, constitutive authority, amending power, and ordinary legislative power are thus formally vested in the same body. Although some movement in this direction has occurred, unless some altogether alternative mechanism for amending the devolution statutes were introduced, the constitutive authority of the British Parliament must in some sense continue. For it is one thing for the authority of the British Parliament to be discontinued in its overseas Dominions, but it is another for it to be discontinued or modified within Great Britain itself. In this respect it is noticeable that the establishment of local constitutional amendment processes in Canada and Australia were considered essential components of the patriation of their respective constitutions. The Scotland Act, by contrast, now merely “recognises” the Sewel Convention and “declares” that the Scottish Parliament and Government will not be abolished without a referendum of the Scottish people. But even if these provisions were stated more categorically, given the principle of parliamentary sovereignty, it is arguable that any such requirements contained in a British statute could themselves be amended by an ordinary enactment of Parliament.178 A similar problem arises in Australia at a state level, because the state constitutions are contained in ordinary statutes enacted by the state legislatures. To prevent some of the more important elements of the Australian state constitutions being amended by simple majorities within the state legislatures, the relevant provisions in the state Constitution Acts are protected by manner and form provisions, which lay down special procedures for amending relevant sections of those Acts. The effectiveness of these procedural requirements originally depended upon an Imperial statute, the Colonial Laws Validity Act 1865 (U.K.), which stipulated that every representative legislature in a colony would have full power to make laws respecting the constitution, powers, and procedure of the legislature, provided such laws were passed in such manner and form required by any relevant law, including any such law enacted by the colonial legislature itself.179 At the time of patriation it was considered necessary to make similar provision in the Australia Acts to ensure the effectiveness of manner and form requirements contained in the state constitutions.180 It is also recognized in Australian law that manner and form provisions must themselves be “doubly entrenched” so they cannot be amended unless the same (or some other) manner and form procedure is followed.181 Otherwise, the manner and form provision could be avoided by first repealing it by ordinary legislation and then proceeding to amend the substantive sections of the Constitution Act.182 Much the same technique of double entrenchment could be used to help protect any special process laid down for amending the devolution statutes within the United Kingdom. However, double entrenchment might not be enough. In Australia, manner and form provisions are given force by imperial statutes that established and conferred legislative power on the state legislatures, but this line of reasoning is not available in regard to the British Parliament itself. If the matter were ever litigated in the United Kingdom the question of the nature of the sovereignty of the Parliament would have to be confronted, and the question would likely turn on considerations similar to those that arose in Jackson v. Attorney General.183 While some of the reasoning in Jackson suggests that such a procedure might well be effective,184 it is not possible to be certain of this,185 not least because the Parliament Acts 1911 and 1949 only bypassed the House of Lords; they did not detract from but rather enhanced the authority of a majority within the House of Commons. Uncertainties about the nature of parliamentary sovereignty contributes to the highly radical view, expressed by some, that a more final settlement of the constitutional fundamentals of British devolution will require a constitutional convention and a ratifying referendum establishing a written constitution for the United Kingdom as a whole. This has led to suggestions that to avoid the over-riding effect of the doctrine of parliamentary sovereignty the permanency of Scottish institutions of government would have to be underwritten by a Scottish referendum and the support of the Scottish Parliament.186 It has also been observed that a constitutional convention might be the pathway by which a written constitution for the United Kingdom could be developed which would function as a “vehicle for making permanent the existence of the three devolved legislatures.”187 When the Scotland Bill 2015 was being debated in the House of Commons, several amendments were proposed to address these issues. The amendments included a proposal that the Scotland Act 1998 be cited as “The Written Constitution of Scotland” and a proposal to establish a standing Scottish Constitutional Convention to conduct reviews and make recommendations to the Scottish and British Parliaments.188 Further expanded legislative and fiscal powers were also proposed, including “full fiscal autonomy,”189 together with provision for territorial representation in the House of Lords by empowering the Scottish Parliament to nominate persons to represent Scotland in the House of Lords roughly in proportion to the population of Scotland within the United Kingdom.190 Following lengthy debate, most of these amendments were either negatived or withdrawn, but they illustrate the way in which the problem of entrenching the constitutional position of Scotland within the United Kingdom is being conceived and debated. As one participant in the parliamentary debate observed, at the heart of the issue is the question of sovereignty. Even a provision that categorically stipulated the Scotland Act could only be amended by referendum might not be enough, as the provision itself might still be avoided by a simple repeal. What is needed, he maintained, was a “fundamental change in the way we do things,” and he suggested this could only be achieved through a written constitution formulated by a constitutional convention.191 If steps such as these were ever to take place, and a written constitution for a federal Britain to result, the constitutive foundations of the United Kingdom would truly begin to resemble those of Canada and Australia. However, the political and constitutional barriers to such a development remain formidable.192 For the moment, a halfway house seems more likely.193 At present, the constitutional system, though changed very significantly, remains fundamentally devolutionary. 5. Conclusions The cases of Canada, Australia, India, and the United Kingdom illustrate the significance of the way effective constitutive power is configured at critical moments when a constitution is brought into being and when its basic features undergo fundamental change. For political systems that have emerged out of territories once forming part of the British Empire, the most critical points in time occur when the external authority of the British Parliament is succeeded by an autochthonous locus of constitutive authority of one kind or another. While such constitutional transitions can be analyzed in terms of a wide array of criteria, in federal or quasi-federal systems, the key issue concerns the manner in which effective constitutive power is distributed between the federal polity and constituent polities. As the cases considered in this article suggest, the configuration of constitutive authority typically operates as a kind of presupposition in constitutional reasoning, as well as a locus of effective political power, which tends to have a systematic effect on the way constituted power is distributed within the resulting federal, or federal-like, system. This has particular application to the location and form of the amending power because the capacity to amend a constitution, though in an important sense a constituted power, is a way of exercising a power that is tantamount to the constitutive authority underlying the entire constitution. The configuration of power within a federal system is typically expressed in a multilayered fashion, beginning with the constitutive authority on which the constitution is based, extending to the amending power by which the constitution can be altered, and including the distribution of ordinary powers of legislation, administration, and adjudication between the federalized polity and its component polities. The constitutional balance of power between polity and polities at any particular point in time is a function of the composition of the institutions that exercise such powers, the procedures they are required to follow when doing so, and the scope or extent of the powers themselves. Every time constitutional power is exercised, a particular aspect of the federal balance is affected, sometimes with relatively specific and limited significance, sometimes with more general and systematic significance, depending on the effect of its exercise on the powers of the other institutions within the constitutional system. The exercise of constitutive authority at the very establishment of a federation is significant in a radically transformative sense. When aggregative in origin, the formation of a federation marks a movement in the locus of constitutive authority from a plurality of polities to a federated polity that continues to be composed of those constituent polities, just as the establishment of federation by devolution marks a movement from a unitary polity to system of federated polities. When the federations and quasi-federations considered in this article are compared, it seems evident that Canada and especially Australia belong on the aggregative side of the spectrum, while the United Kingdom and India belong on the devolutionary side, although aggregative and devolutionary features can be identified in all four systems in some respect or another.194 As such, the characterization of a federal system as either aggregative or devolutionary is usually a matter of degree. Thus, in a largely aggregative federation, the constituent polities may nonetheless have been only relatively autonomous; they may have already been committed to one another in a relatively weak “confederal” arrangement which they agree to make stronger. Australia, like the USA and Switzerland, is an example. In these three cases, the federal constitution was preceded by a looser confederal relationship between the constituent states. On the other hand, a unitary state may already have established a plurality of self-governing provinces that possess limited measures of autonomy. In such cases the governing institutions of those provinces may play an important role in agitating for the conferral of more devolved powers. Canada, Australia, India, and the United Kingdom, in different ways, are examples. In all four cases, formal constitutive authority was vested originally in the British Parliament but was later devolved to local governing institutions in response to local agitation. In Canada, Australia, and India, the British Parliament had repeatedly exercised its authority to divide, amalgamate, and alter the boundaries of particular colonies, and, in the case of Canada, it did so in the very act of establishing the federation. Although federations are in a constant state of constitutional evolution and development in terms of the balance of power between polity and polities across all these dimensions, such changes remain constrained and shaped by the existing configurations of constitutive and constituted authority. Thus, constitutively aggregative systems, like Australia, the USA, and Switzerland, even as they manifest to varying degrees tendencies toward increasing aggregation and thus centralization of power,195 nonetheless presuppose and tend to preserve a relative degree of independence and autonomy for their constituent states, expressed especially in the construction of the amending power and also, in certain respects, the configuration of ordinary legislative, administrative, and judicial powers. Similarly, but as reverse mirror images, predominantly devolutionary systems such as the United Kingdom, even as they often tend to manifest an overall trajectory toward disaggregation and decentralization, nonetheless presuppose and tend to preserve the originally unitary nature of the constitutive authority, expressed especially in the construction of the amending power and, in some respects, the distribution of ordinary powers of governance. These observations can be made more precise by conceiving the conceptual space as a matrix, defined along one axis by the distinction between constitutive authority, amending power, and the ordinary constituted powers of legislation, administration, and adjudication, and defined along the other axis by the distinction between institutional composition, prescribed procedure, and field of competence. The case studies considered in this article suggest that there is generally more flexibility in a constitutional system in regard to the operation of the ordinary constituted powers of legislation, administration, and adjudication than there is in relation to the amending power and especially the constitutive authority upon which the whole constitution rests. The case studies also suggest that constitutional change tends to occur more easily and frequently in relation to the competences exercised by particular institutions than with respect to the procedures according to which they are required to operate and the constitutional rules according to which their composition is determined. As a consequence of these general tendencies, the greatest flexibility tends to be located in the bottom right-hand corner of the imagined matrix, whereas the greatest stability tends to be located in the top left-hand corner (see Figure 1). Figure 1. View largeDownload slide Constitutional flexibility in federal systems Figure 1. View largeDownload slide Constitutional flexibility in federal systems Constitutive authority is generally the most stable element of a constitutional system. The way in which a particular locus of constituent authority operated in the formation of a particular constitution is a matter of historical fact, which does not change, even if prevailing interpretations of the relevant evidence may possibly change. Moreover, the legitimacy of the entire constitutional order depends on how the constitutive authority underlying the constitutional order is conceived, which also contributes to its stability. A change in the locus or nature of the constituent authority is nothing less than a constitutional revolution. The amendment clauses of written constitutions are also relatively stable, largely due to their association with the constitutive fundamentals of the constitution. Amendment clauses stipulate the rules by which the text of the constitution can lawfully and legitimately be changed. Changes to the rules of change within a constitutional system are profound events. By contrast, changes in the distribution of legislative, executive, and judicial power are relatively more frequent, although their frequency varies from one constitutional system to another. As a consequence, while over the long term all constitutions are in a state of flux, some aspects change more frequently and readily than others. In this respect, it is important to consider the composition, procedures, and competences of the political institutions established by federal constitutions. The constitutions considered in this article tend to entrench the compositional features of their institutions more deeply than the competences exercised by those institutions, and the depth of such entrenchment once again appears to be influenced by the extent to which the federal system is aggregative or devolutionary. Thus, while each of the four constitutional systems considered in this article has its own particular constitutive logic and evolving balance of polity and polities, there seem to be certain general patterns of constitutional ordering evident in each case. Moreover, the formative grounds of each federal system, whether aggregative or devolutionary, contribute to the development of assumptions that underlie constitutional reasoning in each country, as contested as that reasoning may sometimes be. Thus, no matter how much the principle of federalism may have come to be recognized and applied in the interpretation of the Indian Constitution, the Supreme Court remains 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 centralized judicial interpretation of the Australian Constitution may have become, the High Court has continued to conceive the Constitution as constitutively federal in ways and to an extent that simply cannot obtain in countries like India and the United Kingdom. The basic settings are fundamentally different. It would take a constitutional revolution in the fullest sense of the word to change this. Placing federal constitutions into comparative perspective offers a vantage point from which the relative plausibility of particular interpretations of each constitution can be assessed. This is one of the very important things that comparative inquiry can do, especially when pursued in a manner that Sujit Choudhry has called “dialogical.”196 Rather than depend solely upon debatable theses about normative universality or convergence among constitutional systems,197 comparative analysis can be directed to highlighting differences, as well as similarities, and to tracing the systemic effects of these points of difference and similarity in each constitution. By taking into account what Cheryl Saunders has called the “multiple layers of meaning” that may potentially be discerned in constitutional systems,198 comparative constitutional law can engender “a keener awareness of the particular,” and help “to expose the factual and normative assumptions underlying . . . [a particular] constitutional order,” thus opening for “discussion and contestation those characteristics which had remained invisible to domestic eyes.”199 The alternatively imperial, aggregative, and devolutionary foundations of a federal or quasi-federal system have enduring and very significant implications for the distribution of powers, institutional design, and amendment procedures adopted thereunder. 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 systematic consequences for the textual and structural features of the constitution, including its formal amendment procedures.200 This is because the exact way in which constitutive authority is configured operates as a kind of presupposition in constitutional reasoning, as well as a locus of effective political power, which tends to have a systematic effect on the way 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 generalized explanation of the formation and amendment of federal constitutions understood comparatively. The support of Australian Research Council grant FT100100469 is gratefully acknowledged. This article began as a paper presented at Thinking About Federalism(s) Beyond the US Experience, a conference held at Yale Law School on October 29–30, 2015. My thanks to the organizer of the conference, Judith Resnik, and to conference participants, especially Olivier Beaud, Jean-François Gaudreault-Desbiens, Jamal Greene, Rick Hills, Vicki Jackson, Amnon Lev, Christophe Schönberger, and Neil Walker, for comments on the paper. Aspects of the paper were presented in preliminary form at seminars held at San Diego Law School on December 2, 2014, George Mason University Law School on January 20, 2015, and Stanford Constitutional Law Center on January 27, 2015. I am grateful to Larry Alexander, Michael McConnell, Michael Rappaport, Steven Smith, and Ilya Somin for organizing these seminars and for their comments on the paper. Footnotes 1 Xenophon Contiades & Alkmene Fotiadou, Models of Constitutional Change, inEngineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA 417 (Xenophon Contiades ed., 2013); Carlo Fusaro & Dawn Oliver, Towards a Theory of Constitutional Change, inHow Constitutions Change: A Comparative Study 405 (Dawn Oliver & Carlo Fusaro eds., 2011). 2 In addition to the sources cited above, see also, e.g., Rosalind Dixon, Constitutional Amendment Rules: A Comparative Perspective, inComparative Constitutional Law 96 (Tom Ginsburg & Rosalind Dixon eds., 2011). 3 John Kincaid & G. Alan Tarr, Constitutional Origins, Structure, and Change in Federal Countries (2005). 4 Contiades & Fotiadou, supra note 1, at 427: “federalism interacts differently with the rest of the factors that influence constitutional change.” Federal constitutions are, typically, difficult to amend: Donald S. Lutz, Toward a Theory of Constitutional Amendment, inResponding to Imperfection: The Theory and Practice of Constitutional Amendment 237, 261 (Sanford Levinson ed., 1995) (showing that of the most difficult constitutions to amend, almost all were federations). 5 In this article I use the terms “constituent” and “constitutive”, in connection with the terms “power” and “authority”, to refer to “the things that a given people [or peoples] in a given time and place understand as competent to make a binding constitution”: Richard Kay, Constituent Authority, 59 Am. J. Comp. L. 715, 716 (1987). 6 E.g.,The Creation and Amendment of Constitutional Norms (Mads Andenas ed., 2000). 7 Contiades & Fotiadou, supra note 1, at 430. 8 See John Kincaid, Comparative Observations, inConstitutional Origins, Structure, and Change in Federal Countries 409, 442–444 (John Kincaid & G. Alan Tarr eds., 2005). 9 For the distinction, seeRonald L. Watts, Comparing Federal Systems ch. 3 (3d ed. 2008); Alfred Stepan, Toward a New Comparative Politics of Federalism, (Multi)Nationalism, and Democracy: Beyond Rikerian Federalism, inArguing Comparative Politics 315 (2001); Roderick A. Macdonald, Kaleidoscopic Federalism, inThe States and Moods of Federalism: Governance, Identity and Methodology 261 (Jean-François Gaudreault-DesBiens & Fabien Gélinas eds., 2005); Nicholas Aroney, Types of Federalism, inMax Planck Encyclopedia of Comparative Constitutional Law (Rainer Grote et al. eds., 2016). 10 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring with Stevens, Souter, Ginsburg, and Breyer, JJ.). 11 Id. at 846 (Thomas, J., with whom Rehnquist, C.J., and O’Connor and Scalia, JJ. joined). 12 H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 Va. L. Rev. 633 (1993). 13 For surveys, seeWalter Hartwell Bennett, American Theories of Federalism (1964); Forrest McDonald, States’ Rights and the Union: Imperium in Imperio, 1776–1876 (2000); John R. Vile, The Constitutional Amending Process in American Political Thought (1992). 14 See infra sections 2 through 5 for details. 15 On comparative method, seeRan Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law 245–253 (2014). 16 Nicholas Aroney, Formation, Representation and Amendment in Federal Constitutions, 54 Am. J. Comp. L. 277 (2006). 17 Documents on the Confederation of British North America 94–95 (G. P. Browne & Janet Ajzenstat eds., 2009) [hereinafter Browne & Ajzenstat]. See alsoDonald Creighton, John A. Macdonald: The Young Politician, The Old Chieftain ([1952 and 1955] 1998). 18 British North America Act 1867 (U.K.) §§ 3, 5, 6. 19 British North America Act 1867 §§ 58, 63, 64, 69, 71, 91, 92. 20 British North America Act 1867 § 22. 21 British North America Act 1867 § 57; see also § 56 on the Queen’s power of disallowance. 22 SeeJohn G. Bourinot, A Manual of the Constitutional History of Canada 77–78, 90, 115 (1888). 23 Only limited powers of amendment were conferred: British North America Act 1867 § 92(1) (amendment of the Provincial constitutions except in relation to the Office of Lieutenant Governor). See also British North America Act 1949, inserting a new § 91(1) into the British North America Act 1867 (enabling amendment of the constitution of Canada, except in regard to matters coming within the exclusive powers of the provinces, etc.). 24 American Colonies Act 1766 (U.K.), also known as the Declaratory Act 1766, enacted following the Parliament’s reluctant repeal of the Stamp Act 1765 (U.K.). 25 Quebec Act 1774 (U.K.); Constitutional Act 1791 (U.K.); British North America Act 1840 (U.K.) (also known as the Union Act 1840). For sources and background, seeAdam Shortt & Arthur G. Doughty, Documents Relating to the Constitutional History of Canada 1759–1791 (1907); William Renwick Riddell, The Constitution of Canada in Its History and Practical Working (1917). 26 Report on the Affairs of British North America (1839). There was also a second rebellion in Upper Canada in 1839. 27 At no point were the Canadian people directly consulted, except that voters in New Brunswick expressed their disagreement with Confederation by voting against the government of Samuel Tilley in 1865: Ged Martin, Introduction, inThe Causes of Canadian Confederation 7 (Ged Martin ed., 1990). For background, seeDonald Creighton, The Road to Confederation: The Emergence of Canada, 1863–1867 (1965); Christopher Moore, 1867: How the Fathers Made a Deal (1997). 28 Browne & Ajzenstat, supra note 17, at 34. 29 Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act 5 (Joseph Pope Ed., 1895). The province of Canada was, however, represented by the coalition government of John A. MacDonald, George Brown, and George-Étienne Cartier, each representing one of the three main factions within the province (conservative, liberal, and French). 30 Id. at 5 (emphasis added). 31 Moore, supra note 27, at 94. 32 Quoted in id. at 15. 33 Jeremy Webber, The Constitution of Canada: A Contextual Analysis ch. 6 (2015). 34 Order in Council, May 16, 1871 (British Columbia); Order in Council, June 26, 1873 (Prince Edward Island); Manitoba Act 1870 (Can.); Alberta Act 1905 (Can.); Saskatchewan Act 1905 (Can.); Newfoundland Act 1949 (U.K.). See also Rupert’s Land Act 1868 (U.K.); Order in Council, June 23, 1870 (Rupert’s Land). 35 Jan Erk, Explaining Federalism: State, Society and Congruence in Austria, Belgium, Canada, Germany and Switzerland ch. 4 (2010). 36 Arthur Berriedale Keith, Imperial Unity and the Dominions 138–142 (1916). 37 Alan Cairns, The Judicial Committee and Its Critics, 4 Canadian J. Pol. Sci. 301 (1971). 38 Inter-Imperial Relations Committee, Report, Proceedings and Memoranda (Imperial Conference, 1926), known as the Balfour Declaration, named after the chair of the committee, Lord Arthur Balfour. 39 Statute of Westminster 1931 (U.K.) § 4. 40 Id. § 2(2). This was extended to the Canadian provinces by § 7(2). 41 Statute of Westminster 1931 §§ 7(1), 8. On Australia, see Part 3. 42 Constitution Act 1867 (U.K.) § 92. 43 Statute of Westminster 1931 (U.K.) § 7(3). 44 The path to patriation was a long one. SeePeter C. Oliver, The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada, and New Zealand chs. 5–7 (2005). 45 Canada Act 1982 (U.K.) § 2; Constitution Act 1982 (U.K.) §§ 38–48. Section 1 of the Canada Act gave force to the Constitution Act, the text of which was set out in Schedule B to the Canada Act. The name of the British North America Act 1867 was also changed to the Constitution Act 1867. 46 Reference re: Amendment of the Constitution of Canada (Patriation Reference), [1981] 1 S.C.R. 753, 762–809. The premise of this finding was the proposition that the proposed amendments would affect federal–provincial relationships and the constitutional rights of the provinces. 47 Id. at 874–910. The existence of the convention was adduced from a practice of consultation on the long series of British amendments to the Canadian Constitution. For a critique, see Peter Hogg, Comment, 60 Canadian Bar Review 30 (1982). 48 Peter Hogg, Formal Amendment of the Constitution of Canada, 55 Law & Contemp. Probs. 253, 254 (1992); William C. Hodge, Patriation of the Canadian Constitution: Comparative Federalism in a New Context, 60 Wash. L. Rev. 585, 632 (1985). 49 Reference re: Amendment of Canadian Constitution, [1982] 2 S.C.R. 793. 50 Statute of Westminster 1931 (U.K.) § 4. 51 Id. §§ 2(2), 7(1), and (2). 52 Canada Act 1982 (U.K.) § 2. 53 Compare Statute of Westminster §§ 2(2) and 7(1). 54 Peter W. Hogg, Supremacy of the Canadian Charter of Rights and Freedoms, 61 Canadian B. Rev. 69 (1983). 55 Constitution Act 1982 §§ 38–48. 56 Id. § 38(1). 57 Id. §§ 38(2), 38(3). 58 Id. § 41. These matters include, among other things, the right of each province to a number of members in the House of Commons not less than the number of senators to which the province is entitled to be represented. 59 Id. §§ 38(2), 38(3), 41, 43. 60 An Act Respecting Constitutional Amendments (S.C. 1996, c. 1). 61 Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, 244–245, 250–252. 62 Notably, the amendment clause appears in the Constitution Act 1982 (U.K.), not the main body of the Canada Act 1982 (U.K.). 63 For a discussion, seeDavid Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales ch. 2 (1991). 64 Imperial Act 21 Geo. III c. 56, 1784 (U.K.); Imperial Act 4 Geo. IV c. 96, 1823 (U.K.); Imperial Act 10 Geo. IV c. 22, 1829 (U.K.); South Australian Colonisation Act 1834 (U.K.); Australian Constitutions Act 1850 (U.K.). 65 E.g., New South Wales Courts Act 1787 (U.K.); New South Wales Act 1823 (U.K.); Australian Courts Act 1828 (U.K.); Australian Constitutions Act (No. 1) 1842 (U.K.); Australian Constitutions Act (No. 2) 1850 (U.K.); New South Wales Constitution Statute 1855 (U.K.); Victoria Constitution Statute 1855 (U.K.); Order in Council (Qld), June 5, 1859; Western Australia Constitution Act 1890 (U.K.). 66 Australian Communist Party v. Commonwealth (1950) 83 C.L.R. 1, 263 (Fullagar, J.). 67 Arthur Berriedale Keith, Responsible Government in the Dominions § I, 25–39 (1912). 68 Official Record of the Proceedings and Debates of the Australasian Federation Conference (1890) at 10. 69 Official Report of the National Australasian Convention Debates, Sydney (1891) at 153 [hereinafter Convention Debates, Sydney]. 70 Only very limited changes were made in London by the imperial crown law officers before enactment: Brian K. de Garis, The Colonial Office and the Commonwealth Constitution Bill, inEssays in Australian Federation 94 (A. W. Martin ed., 1969). 71 The six original “colonies” were deliberately called states and not merely provinces: Commonwealth of Australia Constitution Act 1900 (U.K.) § 6. 72 Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution ch. 6 (2009). Queensland did not attend the second convention, but its political leaders took a keen interest in the proceedings, and the colony decided to join the federation in 1899. 73 Convention Debates, Sydney,supra note 69, at 946; Official Report of the National Australasian Convention Debates, Melbourne (1898), at 2525 [hereinafter Convention Debates, Melbourne]. 74 E.g., Convention Debates, Sydney, supra note 69, at 95 (Edmund Barton), 111 (Richard Baker), 159 (Charles Kingston). Contrary views were expressed by a minority of delegates. See, e.g., id. at 68–86 (Alfred Deakin); Official Report of the National Australasian Convention Debates, Adelaide (1897) at 641–649 (Henry Bournes Higgins); Official Record of the National Australasian Convention Debates, Sydney (1897) at 259–265, 345–351 (Higgins). 75 John Quick & Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth 414 (1901). John Quick was an elected delegate of the colony of Victoria at the second federal convention in 1897–1898. 76 Convention Debates, Sydney,supra note 69, at 884, 946, 963–944. 77 Id. at 884–885. The proposed amendment procedure deliberately drew on the precedent established by Article V of the us Constitution. 78 Convention Debates, Melbourne,supra note 73, at 2525, 2543. SeeAustralian Const. §§ 7 and 128. 79 For detail, seeAroney, supra note 72, ch. 11. 80 See Gregory Craven, Secession: The Ultimate States Right ch. 2 (1986). 81 For detail, seeAroney, supra note 72, at 73–78, 103–107. 82 See id. at 4, 329–332. 83 John Reynolds, A.I. Clark’s American Sympathies and His Influence on Australian Federation, 32 Australian L.J. 62, 66 (1958). 84 Statute of Westminster 1931 (U.K.) § 2(2). 85 Id. § 8. 86 Id. § 4. 87 Australian Const. §§ 51, 52, 106, 107. 88 Aroney, supra note 72, chs. 9 and 10. 89 To do so would have suggested that the states possess a specific set of “reserved powers,” a view that was adopted by the High Court of Australia until its landmark decision in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 C.L.R. 129. SeeNicholas Aroney et al., The Constitution of the Commonwealth of Australia: History, Principle and Interpretation ch. 3 (2015). 90 Statute of Westminster 1931 (U.K.) §9(1): “Nothing in this Act shall be deemed to authorise the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia.” 91 Id. § 4. 92 Australia Acts 1986 (U.K.) and (Aust.). This gives rise to an interesting but unresolved question as to which of the two statutes is primarily effective, from the point of view of Australian law, to bring the powers of the British Parliament over Australia to an end. See Sue v. Hill (1999) 199 C.L.R. 462, 490–503 (Gleeson, C.J., Gummow and Hayne, JJ.), relying on the Australian version; see also 526–528 (Gaudron, J.). 93 Australia Acts 1986 (U.K.) and (Aust.) § 1. 94 Id. § 3. 95 Id. § 5. 96 Id. § 15. For more background, seeAnne Twomey, The Australia Acts 1986: Australia’s Statutes of Independence (2010). 97 See Geoffrey Lindell, Why Is Australia’s Constitution Binding?—The Reasons in 1900 and Now, and the Effect of Independence, 16 Fed. L. Rev. 29 (1986). The Canadian debate on this issue has an interestingly different character. SeePeter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? (2d ed. 1993). 98 Australian Capital Television v. Commonwealth (1992) 177 C.L.R. 106, 138 (Mason, C.J.); Theophanous v. Herald & Weekly Times Ltd. (1994) 182 C.L.R. 104, 171, 180 (Deane, J.). But see McGinty v. Western Australia (1996) 186 C.L.R. 140, 274–245 (Gummow, J.). 99 Commonwealth of Australia Constitution Act 1900 (U.K.), Preamble, § 3. For a fuller account, see Nicholas Aroney, A Public Choice? Federalism and the Prospects of a Republican Preamble, 21 U. Queensland L.J. 205 (1999). 100 Balveer Arora, Republic of India, inDiversity and Unity in Federal Countries 200 (Luis Moreno & César Colino eds., 2010). 101 East India Company Act 1813 (U.K.) (also known as the Charter Act 1813). 102 S. V. Desika Char, Introduction, inReadings in the Constitutional History of India 1757–1947, i, lxii (S. V. Desika Char ed., 1983). 103 Id. at lxvii–lxx. See Interpretation Act 1889 (U.K.) §§ 18(4) and (5). 104 West Bengal v. India, A.I.R. 1963 SC 1241; 1964 S.C.R. (1) 371, 393. 105 Arthur Berriedale Keith, The Constitutional History of India, 1600–1935, 183 (1936). 106 Brij Mohan Sharma, Federalism in Theory and Practice 358–361 (1951). 107 Government of India Act 1919 (U.K.), Preamble. 108 Brij Kishore Sharma, Introduction to the Constitution of India 1.15 (7th ed. 2015); Keith, supra note 105, at 259. For a somewhat different view, seeSharma, supra note 106, at 362–369. 109 West Bengal v. India, supra note 104, at 393. 110 Sharma, supra note 106, at 410–425. 111 Keith, supra note 105, at 319. 112 Id. at 319–320. 113 Id. at 322, 376, 488. In some limited respects, the arrangement could be altered by the Crown in Council. 114 West Bengal v. India, supra note 104, at 394; Char, supra note 102, at lxxxiii–lxxxiv. 115 India, Constituent Assembly Debates (New Delhi, 1951), Monday, Dec. 9, 1946 (Dr. Sachchidananda Sinha). 116 Char, supra note 102, at lxxxv–lxxxc. 117 Indian Independence Act 1947 (U.K.) §§ 1, 6, 7, 8. 118 Mohandas Karamchand Gandhi, The Pyramid vs the Oceanic Circle (1946), inHind Swaraj and Other Writings 188, 188–189 (Anthony J. Parel ed., 1997). 119 Id. at 190. 120 SeeSarbani Sen, The Constitution of India: Popular Sovereignty and Democratic Transformations 31–40 (2011). 121 Readings in the Constitutional History of India 1757–1947, lxxviii, 683–691 (S. V. Desika Char ed., 1983). 122 India, Constituent Assembly Debates (Dec. 13, 1946; Jan. 22, 1947), “Objectives Resolutions 1 and 4.” 123 Akhtar Majeed, Republic of India, inConstitutional Origins, Structure, and Change in Federal Countries 180, 183 (John Kincaid & G. Alan Tarr eds., 2005). 124 India, Constituent Assembly Debates, Vol. II, 31–44 (Nov. 4, 1948). 125 India, Constituent Assembly Debates, supra note 122, “Objectives Resolution 3.” 126 Mohit Bhattacharya, The Mind of the Founding Fathers, inFederalism in India: Origins and Development 101–102 (Nirmal Mukarji & Balveer Arora eds., 1992), cited in Alfred Stepan, Toward a New Comparative Politics of Federalism, (Multi)Nationalism, and Democracy: Beyond Rikerian Federalism, inArguing Comparative Politics 9, 321–322 (2001). 127 Indian Const. arts. 80 and 81, Fourth Schedule. 238 of the 250 members of the Council of States (Rajya Sabha) are chosen by the state legislatures in accordance with a formula that is only slightly weighted in favour of less populous states. 128 Indian Const. art. 149; see also id. art. 150. 129 Id. arts. 256, 257. 130 Id. pt. XVIII. 131 Even the manner in which exclusive and concurrent powers were distributed between the Union and the states followed the general scheme of the Government of India Act 1935. 132 India, Constituent Assembly Debates, Vol. VII, “Motion re. Draft Constitution.” 133 West Bengal v. India, supra note 104, at 396. 134 India, Constituent Assembly Debates, Vol. VII, supra note 132, at 43–44 (Ambedkar). 135 Indian Const. arts. 3, 4. An amendment to the Constitution in 1955 stipulated that such proposals must first be recommended by the president and be referred to the legislature of any affected state for the expression of its views, but the power to make the change remains vested in the Union Parliament acting by simple majority. The States Reorganisation Act 1956, enacted in this way, implemented a far-reaching reorganization of the states along linguistic lines. 136 Id. art. 368. 137 Id. art. 368(2). Of a similar nature is the power of the Union Parliament to establish or abolish a legislative council in a state, which requires the consent of two-thirds of the Legislative Assembly of the affected state: id. art. 169. 138 Majeed, supra note 123, at 191. 139 I rely here on Matthew Abraham, The Judicial Role in Constitutional Amendment in India, inThe Creation and Amendment of Constitutional Norms 195 (Mads Andenas ed., 2000); Mahendra Pal Singh, India, inHow Constitutions Change: A Comparative Study 169 (Dawn Oliver & Carlo Fusaro eds., 2011). For background, seeSen, supra note 120, ch. 7. 140 Shankari v. Prasad Singh Deo v. Union of India, A.I.R. 1951 SC 458; Sajjan Singh v. State of Rejasthan, A.I.R. 1965 S.C. 845. 141 A.I.R. 1967 S.C. 1643. 142 A.I.R. 1973 S.C. 1461. 143 Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine ch. 1 (2011). 144 A.I.R. 1980 S.C. 1789. 145 Krishnaswamy, supra note 143, at 205: “The concept of sovereignty and its relationship with the constitution is central to any understanding of the legitimacy of the basic structure doctrine.” 146 Supra note 142, ¶ [13]. 147 Id. ¶ [571]. 148 See S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918, and the discussion in Manish Tewari & Rekha Saxena, The Supreme Court of India: The Rise of Judicial Power and the Protection of Federalism, inCourts in Federal Countries: Federalists or Unitarists? 223 (Nicholas Aroney & John Kincaid eds., 2017). 149 See e.g., Andrew Blick & George Jones, A Federal Future for the U.K.: The Options (2010); Home Rule and Community Rule Commission, Federalism: The Best Future for Scotland (2012); David Melding, The Reformed Union: Britain as a Federation (2013); David Torrance, Britain Rebooted: Scotland in a Federal Union (2014). 150 See, further, Scotland Act 2016, §§ 1 and 2, discussed below. 151 Vernon Bogdanor, Constitutional Reform in Britain: The Quiet Revolution, 8 Ann. Rev. Pol. Sci. 73, 81–84 (2005). 152 Ronald L. Watts, The United Kingdom as a federalised or regionalised union, inDevolution and Power in the United Kingdom 239 (Alan Trench ed., 2007), drawing principally on Alan Trench, id. at 48. Note that these analyses were published prior to the Scotland Act 2012 (U.K.) and Wales Act 2014 (U.K.). 153 Watts, supra note 152, at 250; see also id. at 263–264. 154 The Sewel Convention with respect to Scotland, and similar understandings for Northern Ireland and Wales, stipulate that in all usual circumstances the British Parliament will not legislate in relation to devolved matters, or vary the legislative competence of the devolved legislatures, without their consent: Paul Bowers, The Sewel Convention 2 (2005); Memorandum of Understanding and Supplementary Agreements Between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee (Oct. 2013), ¶ [14]. 155 Northern Ireland (Temporary Provisions) Act 1972 (U.K.); Northern Ireland Constitution Act 1973 (U.K.). Devolution was suspended in Northern Ireland for various periods in the 2000s, including from October 2002 to May 2007. 156 That is, putting aside the system of local government in England. 157 SeeOonagh Gay et al., The West Lothian Question (2011). 158 Laws in Wales Act 1535 (Eng.); Laws in Wales Act 1542 (Eng.); Union with Scotland Act 1706 (Eng.); Union with England Act 1707 (Scot.); Union with Ireland Act 1800 (U.K.); Act of Union (Ireland) 1800 (Ire.); Irish Free State Constitution Act 1922 (U.K.). 159 Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy 165–167 (1999). 160 E.g., Government of Ireland Act 1920 (U.K.); Northern Ireland Constitution Act 1973 (U.K.); Northern Ireland Act 1998 (U.K.); Scotland Act 1978 (U.K.); Scotland Act 1998 (U.K.); Scotland Act 2012 (U.K.); Government of Wales Act 1998 (U.K.); Government of Wales Act 2006 (U.K.); Wales Act 2014 (U.K.); Scotland Act 2016 (U.K.); Wales Act 2017 (U.K.). 161 Scotland Act 1998 § 28(7); Northern Ireland Act 1998 § 5(6); Government of Wales Act 2006 § 93(5). 162 E.g., Scotland Act 1998, Schedule 4, ¶ [4]. Note that § 30(2) also authorizes the Queen by Order in Council to make modifications to Schedule 4 and 5 of the Act. 163 Government of Ireland Bill 1886 (U.K.); Government of Ireland Bill 1893 (U.K.); Government of Ireland Act 1914 (U.K.); Government of Ireland Act 1920 (U.K.); Irish Free State Constitution Act 1922 (U.K.); Irish Free State (Consequential Provisions) Act 1922 (U.K.); Northern Ireland Constitution Act 1973 (U.K.); Northern Ireland Act 1998 (U.K.). 164 The Constitution was enacted as a schedule to the Constitution of the Irish Free State (Saorstat Eireann) Act 1922 (Ire.). 165 State (Ryan) v. Lennon, [1935] I.R. 170; Moore v. Attorney-General for the Irish Free State, [1935] A.C. 484. 166 Northern Ireland Constitution Act 1973 (U.K.) § 1; Northern Ireland Act 1998 (U.K.) § 1. 167 See Nicholas Aroney, Reserved Matters, Legislative Purpose and the Referendum on Scottish Independence [2014] Pub. L. 422. 168 For more detail, see Nicholas Aroney, Devolutionary Federalism Within a Westminster-Derived Context, inThe Scottish Independence Referendum: Constitutional and Political Implications 295 (Aileen McHarg et al. eds., 2016). 169 Smith Commission, Report of the Smith Commission for Further Devolution of Powers to the Scottish Parliament 239, ¶ [20] (2014). 170 Id. at 7, ¶¶ [21]–[22]. A similar proposal to recognize the permanent constitutional status of the Welsh National Assembly and formalize the Legislative Consent Motion procedure for Wales was also recommended: Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers to Strengthen Wales ¶¶ [13.3.23], R.54(a), [13.3.30], R.56 (2014) (hereafter Silk Commission). In the Wales Act 2017 (U.K.) § 1, the permanency of the Welsh Assembly and Welsh Government were accordingly recognized and it was declared that they are not to be abolished without a Welsh referendum 171 UK Government, Scotland in the United Kingdom: An Enduring Settlement 7, ¶¶ [1.2]–[1.4] (2015); UK Government, Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales ¶ [2.2.4] (2015). 172 Scotland Act 2016 §§ 1 and 2, inserting new §§ 28(8) and 63A into the Scotland Act 1998. 173 Devolution (Further Powers) Committee, New Powers for Scotland: An Interim Report on the Smith Commission and the UK Government’s Proposals ¶¶ [41], [47], [61] (2015). 174 Statute of Westminster 1931 (U.K.) § 4. 175 Canada Act 1982 (U.K.) § 1; Australia Act 1986 (U.K.) § 1. Compare Indian Independence Act 1949 (U.K.) § 6(4), which provided that no statute of the British Parliament would apply to India or Pakistan unless it was extended thereto by a law of India or Pakistan. 176 Oliver, supra note 44, 50–53, 95–96. In relation to appeals from the courts of the Australian States, the Privy Council’s jurisdiction was effectively terminated by the Australia Acts 1986 (U.K.) and (Aust.) § 11. 177 Sue v. Hill, (1999) 199 C.L.R. 462, [63]–[64]; Durham Holdings v. New South Wales, (2001) 205 C.L.R. 399, ¶ [9]; Attorney-General (WA) v. Marquet, (2003) 217 C.L.R. 545, ¶¶ [66]–[67]; Mitchell v. M.N.R., [2001] 1 S.C.R. 911, ¶ [129]. 178 Devolution Committee, supra note 173, ¶ [45]. 179 Colonial Laws Validity Act 1865 (U.K.) § 5. 180 Australia Acts 1986 (U.K.) and (Aust.) § 6. 181 Attorney-General (NSW) v. Trethowan, (1931) 44 C.L.R. 394; Attorney-General (WA) v. Marquet, supra note 177. See also R v. Drybones, [1970] S.C.R. 28. 182 Aroney et al., supra note 89, at 625–632. 183 Jackson v. Attorney General, [2005] U.K.H.L. 56; [2006] 1 A.C. 262. SeeColin Turpin & Adam Tomkins, British Government and the Constitution 53–61 (7th ed 2011). 184 Jackson v. Attorney General, supra note 183, ¶ [81] (Lord Steyn). 185 Id. ¶ [113] (Lord Hope); see also id. ¶¶ [161]–[163] (Baroness Hale). 186 Devolution Committee, supra note 173, ¶ [50]. See, similarly, Scottish Government, More Powers for the Scottish Parliament: Scottish Government Proposals 9, 28 (2014). 187 Silk Commission, supra note 170, ¶ [16.8.3]. 188 Scotland Bill 2015 (U.K.), New Clause 6; United Kingdom, Parliamentary Debates, House of Commons, June 15, 2015, col. 26. 189 Scotland Bill 2015, Amendment 89 and New Clause 3; Parliamentary Debates, supra note 188, cols. 25–26. 190 Scotland Bill 2015, New Clause; Parliamentary Debates, supra note 188, col. 26. 191 Parliamentary Debates, supra note 188, cols. 28–29 (Alistair Carmichael); see also id. cols. 71–72 (Pete Wishart). 192 See, e.g., the UK Government’s resistance to a constitutional convention and its insistence on the sovereignty of the UK Parliament as the UK’s alternative to a written constitution: Parliamentary Debates, supra note 188, cols. 90–91, 105–106 (David Mundell). 193 See, e.g.,Independent Commission, Bingham Centre for the Rule of Law, A Constitutional Crossroads: Ways Forward for the United Kingdom (2015). 194 See, similarly, Stepan, supra note 9. 195 See, e.g., John Kincaid, The Rise of Coercive Federalism in the United States: Dynamic Change with Little Formal Reform, inThe Future of Australian Federalism: International and Comparative Perspectives 157 (Gabrielle Appleby et al. eds., 2012); James Allan & Nicholas Aroney, An Uncommon Court: How the High Court of Australia Has Undermined Australian Federalism, 30 Sydney L. Rev. 245 (2008). 196 Sujit Choudhry, Globalisation in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 Ind. L.J. 819 (1999). 197 Jeffrey Goldsworthy, Questioning the Migration of Constitutional Ideas: Rights, Constitutionalism and the Limits of Convergence, inThe Migration of Constitutional Ideas 115 (Sujit Choudhry ed., 2006). 198 Cheryl Saunders, The Use and Misuse of Comparative Constitutional Law, 13 Ind. J. Global Legal Stud. 37, 52 (2006). 199 Sujit Choudhry, Migration as a New Metaphor in Comparative Constitutional Law, inThe Migration of Constitutional Ideas 1, 22–23 (Sujit Choudhry ed., 2006). 200 Aroney, supra note 16. © The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Journal of Constitutional Law Oxford University Press

The formation and amendment of federal constitutions in a Westminster-derived context

Loading next page...
 
/lp/ou_press/the-formation-and-amendment-of-federal-constitutions-in-a-westminster-iPCn536noV
Publisher
Oxford University Press
Copyright
© The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
ISSN
1474-2640
eISSN
1474-2659
D.O.I.
10.1093/icon/moy002
Publisher site
See Article on Publisher Site

Abstract

Abstract This article discusses the formation and amendment of federal and federal-like constitutions in a Westminster-derived or post-Westminster context. The four countries considered are Canada, Australia, India, and the United Kingdom. They are chosen for comparison due to their common historical relationship to Britain and the exercise by the British Parliament of sovereign legislative and constitutive authority over their respective territories. While Canada, Australia, and India are today constitutionally independent of Britain, and while substantial autonomy has been conferred on the devolved parliaments of Scotland, Wales, and Northern Ireland within the UK, each country has secured such independence and autonomy differently. Similarly, the constitutional relationship between the federated polity and its constituent polities in each of these countries has evolved in unique ways. This mixture of “similarity” and “difference” offers an opportunity to isolate the potential effect of particular features of the four constitutional systems and to consider the systemic effect those features might have within federal and federal-like constitutions more generally. It is argued that the mechanisms of constitutional amendment within the four countries are best understood in terms of competing locations of effective constitutive authority, as displayed in the processes by which each federal or federalized constitution was originally established and continues to evolve. Approaching the question this way, the uniquely context-dependent nature of the bargains that underlie the formation of federal and federal-like constitutions can be incorporated into a comparative theory that offers a general account of the formation and amendment of such constitutions having broad explanatory power. 1. Introduction Constitutional change is a result of complex interactions involving many elements. While its primary drivers are executive action, legislative enactment, judicial interpretation, and formal constitutional alteration, its possibility and direction are shaped by wider contextual factors, such as history, culture, and values. Constitutional change can be initiated by political elites and consummated by the populace, but not necessarily so. The mechanisms of constitutional change are numerous and can be combined in various ways.1 It has been customary to understand constitutional change in terms of a series of oppositions: rigid v. flexible, formal v. informal, elitist v. popular, incremental v. episodic, legal v. extra-legal, and so on.2 Each opposition focuses on a particular issue. How difficult is constitutional change? By what mechanisms can it occur? Which political actors are able to effect it? How frequently does it occur? Can it occur through extra-legal means? While these questions are profoundly important, they are liable to distract attention from the defining set of questions that characteristically arise in federations, which concern the constitutive relationship between the federation and its component states. Constitutional change within federal systems can be analyzed in terms of concepts such as rigidity and flexibility, formality and informality, and so on, but these issues are generic to all constitutional orders. The specific problem that federalism raises concerns a different question, the question of the constitutive relationship between polity and polities. Federations are characterized by this complicating two-fold character, deeply embedded in the processes by which they are formed, the institutions through which they operate, and the mechanisms by which they change and evolve.3 All the other oppositions deal with the state simpliciter, presupposing a unitary conception of the state, and are for this reason indifferent to the plurality of political communities that constitute a federal system. And this is highly misleading when it comes to federalism. We cannot begin to understand the dynamics of constitutional change in federations without grappling with the problem of the relationship between the federalized polity and its component polities.4 Discussion about constitutional change often revolves around the location, or locations, of constituent power or authority,5 for it is difficult to separate the question of constitutional change from the question of constitutional origin.6 Formal constitutional amendment clauses don’t necessarily recapitulate the constituent authority upon which a constitution is founded, but they come close.7 Is the amendment clause a constituted power or a special kind of constituent power? It depends on which way you look at it. Amendment clauses appear within the texts of constitutions alongside all the other provisions. As such, they seem to be a kind of constituted power. However, they offer a means by which the constitution itself can be altered, which is tantamount to a kind of constituent power. And yet, most amendment clauses prescribe procedures that are different from those used when the constitution was created. Do they therefore displace the constituent power, or somehow coexist with it? Most constitutions do not answer these particular questions explicitly, and they are rarely litigated. As a consequence, discussion about the location of constituent authority and its relation to amendment procedures is usually conducted in an academic context and is heavily laden with constitutional theory and normative commitments. All of this is complicated in federal systems by the question of polity and polities. Is the constituent authority that lies behind a federation best conceived in unitary or plural terms, or somehow both? To what extent does the unity and plurality of the political order shape the amendment procedure stipulated in the constitution?8 And does it make a difference if a federation is aggregative or devolutionary in origin?9 Each federal system has unique characteristics and debates over mechanisms of constitutional change are formulated in terms specific to each country. Theory-laden as they are, such debates often produce widely varying views as to the location(s) of constituent authority and the means by which a constitution can formally (or informally) be amended. Because they are theory-laden, and rarely litigated, such debates are also seemingly interminable. A federal political system can be politically stable and yet harbor profound disagreements about the constituent authority on which it is founded and the means by which its constitution can legitimately be altered. From time to time such disputes can erupt into explicit political, constitutional, and even military conflict. Take the USA as an example. Although the preamble to the US Constitution appeals for its authority to “We the People of the United States,” it is far from a settled question exactly who these people are, or were. According to Justice Kennedy in U.S. Term Limits, Inc. v. Thornton, “the whole people of the United States asserted their political identity and unity of purpose when they created the federal system.”10 In his dissenting judgment in that case, however, Justice Thomas maintained that “[t]he ultimate source of the Constitution’s authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.”11 The debate is an old one.12 It can be traced to the very beginnings of the federal republic, and it underlay the competing constitutional jurisprudences marshalled by the two sides in the American civil war.13 This article offers an explanatory theory of the formation and amendment of federal constitutions based on a small-N comparison of Canada, Australia, India, and the United Kingdom. These countries are chosen as a set of “most similar cases” by virtue of their historical relationship to the British Parliament, which asserted and exercised sovereign legislative and constitutive authority over their respective territories at one time or another. While the first three are now constitutionally independent of the United Kingdom, and while substantial autonomy has been conferred on the devolved parliaments of Scotland, Wales, and Northern Ireland within the United Kingdom, such independence and autonomy were secured in different ways, just as the federal or quasi-federal system of each country has also evolved in constitutionally unique ways.14 This mixture of “similarity” and “difference” offers an opportunity to isolate the potential effect of the unique features of each federation—particularly in relation to the location of constituent authority within the federation, especially focusing on the respective roles of the component polities and the federalized polity in the formation of the federal system.15 In this article I argue that the mechanisms of constitutional amendment within federal systems are best explained by reference to the location or locations of effective constitutive authority presupposed by and operationalized through the legal-political processes by which the federal constitution was originally established and continues to change and evolve. 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 it is possible to identify certain systemic consequences for the textual and structural features of the constitution, including its formal amendment procedures.16 This is because the exact way in which effective constitutive authority is configured operates as a kind of presupposition in constitutional reasoning, as well as a locus of 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 generalized explanation of the formation and amendment of federal constitutions understood comparatively. 2. Canada The Dominion of Canada was established as a “federal union” of the provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in 1867. Although the Canadian Constitution was patriated in 1982, the federation was originally established by, and continues to owe its fundamental constitutional features to, the British North America Act 1867, a statute of the British Parliament. The British North America Act established a federal union of a kind that departed in several important respects from the American model. The prime reason for this was articulated by John A. Macdonald, Canada’s first prime minister. He argued that Canadians ought to avoid what he called the “primary error” of the American Constitution, namely, the idea that “each state reserved to itself all sovereign rights” except for the small number of powers specifically delegated to the federation. He insisted that Canadians must “reverse this process” by establishing a strong central government and conferring on the provincial bodies only those powers necessary for local purposes. Such an approach was necessary, he believed, to avoid the possibility of civil war over the question of secession, as had occurred in the USA. By dividing powers this way, Macdonald said, all “sectional prejudices and interests” could still be legislated for by the local legislatures; however, to ensure “the people of every section” would “feel that they are protected,” the division of powers would be contained in a constitution “founded on an Act of the Imperial Parliament” and adjudicated by the courts.17 The British North America Act accordingly treated the constituent provinces simultaneously as both creatures and constituents of the federation. Thus, the legal effect of the Act was first to divide the existing province of Canada into two separate provinces of Ontario and Quebec, and then unite them with the two existing provinces of Nova Scotia and New Brunswick into “One Dominion” called the Dominion of Canada.18 The Act established parliaments for the two new provinces as well as the Dominion as a whole, and distributed between them legislative powers over a vast array of topics, with any unallocated powers granted to the federal parliament.19 The Imperial Act also established separate executive governments for the two levels of government and made plain that the executive powers formally vested in the governor general and lieutenant governors would be exercised on the advice of ministers responsible to their respective parliaments in accordance with the principles of parliamentary responsible government. Moreover, while the provinces were notionally “represented” in the federal Senate, senators were appointed by the governor general and the Maritime provinces (Nova Scotia and New Brunswick) were treated as a single unit entitled to twenty-four senators as whole (twelve senators each), alongside twenty-four senators for Ontario and twenty-four senators for Quebec.20 The result, on paper, was a relatively centralized federation in which the legislative powers of the Dominion parliament and the capacity of the Dominion government to appoint all vice-regal representatives and judges, as well as the power of the governor general to reserve federal and provincial bills for the Queen’s assent,21 seemed to loom large.22 This treatment of the component provinces—establishing them, dividing them, creating their governing institutions, conferring powers upon them, and placing them under imperial supervision—was premised on the authority of the British Parliament to provide for the governance of its overseas territories. The British North America Act was a statute of the Parliament, and in accordance with the doctrine of parliamentary sovereignty it remained within its legal power to repeal the act or amend it in any respect. As a consequence, it was not thought necessary to include within the Act a procedure by which Canadians themselves might amend it.23 This absence reflected the extent to which the whole scheme was dependent upon the constitutive authority of the Imperial Parliament. From a British point of view—a view shared by most Canadian politicians at the time—the colonies, although self-governing, were subject to the “full power and authority” of the Imperial Parliament to make laws binding them “in all cases whatsoever.”24 Indeed, the territorial identity and constitutional status of the Canadian colonies had long been dependent upon the dictates of imperial policy. The constitutional administration of Britain’s colonies in North America had gone through three broad phases prior to their federation in 1867: a first phase in which the territories ceded by France to Great Britain in 1763 were incorporated into the single province of Quebec (1774), a second phase in which they were divided into the separate provinces of Upper Canada and Lower Canada (1791), alongside the separately established maritime provinces of Newfoundland (1583), Nova Scotia (1710–1763), Prince Edward Island (1746–1763), and New Brunswick (1784), and a third phase in which the provinces of Upper and Lower Canada were re-amalgamated into the single province of Canada under a local, unitary administration (1840).25 These shifts in British policy were responsive to developments within the colonies. The amalgamation of Upper and Lower Canada into a single province had been one of two key recommendations of Lord Durham in his influential report of 1839, which had been commissioned by the imperial authorities following a rebellion in Lower Canada in 1838.26 The other recommendation was that Canadians be granted parliamentary responsible government. For several decades the provinces of Nova Scotia, Prince Edward Island, New Brunswick, and Upper and Lower Canada had enjoyed representative legislatures, but in the 1840s and 1850s the British authorities were eventually convinced that the executive government in each colony should also be responsible to those legislatures. From that time, although executive power remained formally vested in the British Crown, each colonial governor was required, as a matter of political convention, to appoint as his ministers and advisors elected political leaders who had the confidence and support of the relevant colonial parliament. This, in effect, conferred substantial powers of local self-government on the colonies. Their confederation in 1867 cannot be understood apart from this fact. Despite its formal features, the scheme of federation embodied in the British North America Act was the result of closely reasoned negotiations between the political representatives of the provinces at conferences convened at Charlottetown and Quebec in 1864 and London in 1866.27 While there was strong support among the delegates for federation, it was recognized, as George Brown put it, that it would be necessary to find “terms of union that could be made satisfactory” to each province.28 Each province was therefore given one vote in negotiations, Upper and Lower Canada being considered two separate provinces for this purpose.29 The necessary “terms of union” were hammered out in hard bargaining at Quebec, resulting in seventy-two resolutions intended to be submitted first to the provincial governments for approval and then to the British Parliament for enactment into law. The first and most fundamental of the resolutions made clear the guiding principle of the proposed union when it stated that “[t]he best interests and present and future prosperity of British North America will be promoted by a Federal Union under the Crown of Great Britain, provided such Union can be effected on principles just to the several Provinces.”30 As Christopher Moore has emphasized, it was the electorally responsible political leaders of the constituent provinces, not the British authorities, who determined the terms on which confederation occurred in 1867.31 One of the most important elements of that agreement was the division of the province of Canada into the provinces of Ontario and Quebec. Establishment of two separate provinces was deemed necessary to recognize, as Francis Hincks put it, “that the people occupying Upper and Lower Canada were not homogenous; but they differed in feelings, language, laws, religion and institutions, and therefore the union must be considered as between two distinct peoples, each returning an equal number of representatives.”32 This settlement between Ontario and Quebec, as well as the insistence by the Maritime provinces that their rights of local self-government likewise be preserved, gave rise to an understanding that the Canadian union was based upon a “compact” between the provinces.33 This idea, that the federation was fundamentally aggregative in character, was further reinforced by the later admission, on negotiated terms, of the provinces of Manitoba in 1870, British Columbia in 1871, Prince Edward Island in 1873, Alberta in 1905, Saskatchewan in 1905, and Newfoundland in 1949.34 Although the British North America Act was intended to establish a relatively centralized system of government, these diverse social, cultural, and political factors have contributed to important decentralizing trends in Canadian federalism.35 According to imperial law, the British North America Act operated in Canada by its own paramount force, with the consequence that any Canadian federal or provincial statute inconsistent with it was void for repugnancy.36 The Act thus functioned as a kind of constitution for Canada, enforced initially by the Judicial Committee of the Privy Council and later by the Supreme Court of Canada. Decisions of the Privy Council rigorously applying the division of powers between the provinces and the Dominion supported the proposition that, despite the extensive powers conferred upon the Dominion, one of the goals of federation was to protect the autonomy of the provinces, especially Quebec.37 Around the time of World War I, an imperial convention developed that the British Parliament would no longer legislate for any of its self-governing dominions, including Canada and Australia, without their explicit request and consent.38 The convention was soon thereafter formalized into law by the Statute of Westminster 1931,39 which also conferred power on the parliament of each dominion to legislate inconsistently with any British statute insofar as it was part of the law of the dominion.40 In the case of Canada and Australia, one exception to this was that the power did not extend to the British North America Acts 1867–1930 (U.K.) or the Commonwealth of Australia Constitution Act 1900 (U.K.), in order to preserve their functioning as a kind of constitutional law for the two countries.41 In particular, it was necessary to ensure the national parliaments of Canada and Australia, being federal legislatures which shared legislative power with their constituent provinces and states, would not be able to legislate with respect to matters within the authority of those provinces and states. This was relatively straightforward in Canada, where the subject matters falling within the legislative powers of the provinces are specifically identified and exclusive in nature.42 Maintaining the division of power in Canada simply required a stipulation that the powers conferred by the Act on the Dominion and the provinces would be restricted to matters within their respective competences.43 In Australia, as will be seen, a more complicated formula was required. This shifting two-dimensional balance between imperial oversight and local initiative on one hand and constituent polities and federal polity on the other was also expressed in the events that accompanied the eventual patriation of the Canadian Constitution in 1982.44 Technically, this was secured in a manner that preserved legal continuity. Because Canadians lacked legal authority to secure patriation and were not minded to assert it in a revolutionary manner, it was a British statute, the Canada Act 1982, by which the British Parliament effectively abdicated legislative power over Canada while simultaneously conferring upon Canadians a local power to amend their own Constitution.45 However, when the possibility of patriation was being debated within Canada in the early 1980s, the question arose whether the required request and consent for the necessary imperial statute was a matter for the two houses of the Canadian Parliament alone, or would require the request and consent of some or all of the provinces as well. In the Patriation Reference, decided in 1981, a majority of the Supreme Court of Canada held that, as a matter of law, the two houses of the Canadian Parliament could simply request the British Parliament to enact the relevant constitutional amendments, without reference to the provinces.46 However, a different majority considered that a constitutional convention constrained the houses of the federal Parliament from requesting the patriation of the Constitution without a “substantial measure” of provincial support.47 As a consequence of the Court’s decision and accompanying political pressure, the Canadian government was forced to seek and obtain the requisite provincial consent, and in the event nine of the ten provinces (Quebec dissenting) concurred in the patriation of the Canadian Constitution on the terms contained in the Canada Act 1982.48 Quebec’s argument that its consent was required as a matter of convention was rejected by the Supreme Court in the Quebec Veto Reference.49 The objectives of patriation were several. As noted, the Statute of Westminster had affirmed the power of the British Parliament to legislate for Canada while limiting it to circumstances where Canada requested and consented to the enactment of the legislation.50 It also affirmed the power of the Canadian legislatures to enact laws inconsistent with British statutes, while preserving the constitutional status of the British North America Acts 1867–1930.51 The Canada Act took this significantly further. Its primary objective was to bring the authority of the British Parliament to legislate for Canada to a decisive end,52 while nonetheless preserving the British North America Acts as the documentary core of Canada’s Constitution. To achieve this, section 52 of the Constitution Act 1982 (contained as a Schedule to the Canada Act 1982) made clear that, even though the British Parliament had abdicated its authority and the Canadian legislatures had power to enact laws inconsistent with imperial statutes, the constitutional status of the British North America Acts, the Canada Act, and the Constitution Act would be preserved. Moreover, this was achieved not by relying on the background doctrine that colonial statutes repugnant to imperial statutes are void or inoperative (as the Statute of Westminster had done)53 but by declaring that “the Constitution of Canada is the supreme law of Canada” and can only be amended in accordance with the terms of the Constitution itself. This ensured the ordinary legislative powers of the federal and provincial legislatures would not extend to amending Canada’s constitutional statutes.54 It was also necessary to provide some mechanism by which the Canadian Constitution could be amended. Just as patriation had depended upon the request and consent of the federation with the agreement of nine of the ten provinces, the federal nature of the system suggested the new constitutional amendment process would have to involve the active participation of the federal and provincial governments, without enabling either to change the fundamental terms of the federation unilaterally. The Constitution Act accordingly gave the federal and provincial legislatures a jointly shared power to amend the Constitution, the exact level of agreement to be secured depending on the magnitude of the proposed amendment.55 The primary amendment provision requires a proclamation issued by the governor general that is authorized by resolutions of the Senate, the House of Commons, and the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, at least 50 percent of the population of all the provinces.56 However, any amendment that derogates from the legislative powers, proprietary rights, or other rights or privileges of the legislature or government of a province will not have effect in a province the legislative assembly of which expresses its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation.57 In addition, amendments concerning matters of intrinsic interest to all the provinces require the support of the Senate, the House of Commons, and the legislative assembly of every province.58 In this way, each provincial legislature has a guaranteed role in the amendment process, including a capacity to veto any change affecting its particular powers, rights, or privileges.59 Despite the protection these procedures give to the provinces, however, they were unacceptable in some quarters, especially Quebec. In response, the Dominion Parliament enacted a law preventing a Minister of the Crown from proposing a constitutional amendment without first obtaining the consent of each of Ontario, Quebec, British Columbia, two or more of the Atlantic provinces, and two or more of the Prairie provinces.60 The patriation of the Canadian Constitution, although contested by Quebec, resulted in the confirmation and deepening of the federal nature of the system in several respects.61 While preserving legal continuity, the Constitution has been transformed from being almost entirely Westminster-dependent into a fundamental law that recognizes the rights to constitutional self-determination of the Canadian people organized federally in their respective provinces. The transition affected by patriation was Westminster-derived, and did not depend on an overt revolutionary assertion of independence or autochthony, but the change was nonetheless initiated by Canadians, depended on the consent of most of the provinces, and was profound in its effects.62 By enacting the Canada Act 1982 in response to Canada’s request, the British Parliament simultaneously established the constitutional foundations of an independent Canada, abdicated its own authority to legislate for Canada, and conferred on Canadian political institutions an independent, federal, and democratic means of undertaking constitutional amendments in the future. 3. Australia A similar story can be told about the constitutional origins and evolution of the Australian federation. Following the annexation of the eastern coast of Australia by the British Crown in 1770, a succession of parliamentary statutes provided for the government of the annexed territory. By Order in Council of December 6, 1786, made pursuant to the Transportation Act 1784 (U.K.), His Majesty’s colony of New South Wales was declared a place for the reception of “felons and other prisoners,” administered under the authority of governors responsible to Britain alone.63 At its maximum extent the territory of New South Wales included some two-thirds of the continent, but over time separate colonies were established under statutory authority: Van Diemen’s Land (Tasmania) in 1825, Western Australia in 1829, South Australia in 1836, Victoria in 1851, and Queensland in 1859.64 A succession of British statutes also provided for the establishment of governing institutions in each of the colonies, consisting of governors, legislative councils, and eventually legislative assemblies.65 As in Canada, when the six Australian colonies were formed into a federation in 1901, this also occurred through an imperial statute, the Commonwealth of Australia Constitution Act 1900. At the time of its enactment the Act operated in Australia by paramount force and continues to be the basis upon which the Privy Council and especially the High Court of Australia have exercised the power of judicial review to ensure that the governing institutions of the Commonwealth and the constituent states are kept within constitutional bounds.66 Likewise, when the British Parliament eventually abdicated its power to legislate for Australia, this was accomplished, from a British point of view, through the enactment of the Australia Act 1986 (U.K.). By the time that the federation of the Australian colonies was seriously being discussed in the 1890s, most of them had been enjoying the privilege of parliamentary responsible government for some four decades.67 Moreover, each colony had its own Constitution Act which it was able to amend by local statute pursuant to powers conferred by the colony’s founding statutes as well as by the Colonial Laws Validity Act 1865 (U.K.). While technically still subject to the ultimate authority of the British Parliament to legislate for the Empire, the colonies had become accustomed to exercising far-reaching powers of local self-government and constitutional self-determination. As Premier Samuel Griffith, of the colony of Queensland, remarkably claimed in 1890, the Australian colonies had “become practically almost sovereign states, a great deal more sovereign states, though not in name, than the separate States of America.”68 This meant, as the Premier of the colony of South Australia, Charles Kingston, put it: “We are dealing with autonomous States, who have long enjoyed the blessing of self-government, and who should not be asked—and who, if asked, would not be likely to accede to the request—to sacrifice any of their existing powers other than those which it is absolutely necessary should be surrendered in the national interest.”69 Given this self-understanding, representatives of the Australian colonies took a very active role in the formation of the Australian federal constitution, deliberating about every intricacy of its design, drafting its entire text and forwarding it to the British authorities with the expectation that it would be enacted exactly as drafted.70 While the Australian Constitution would formally derive its authority from the Imperial Parliament, it was understood the document was the result of a closely negotiated agreement between representatives of the constituent states.71 The details of that agreement were worked out in two federal conventions held in 1891 and 1897–1898, respectively. At each convention the colonies were equally represented and thus had a constitutively equal role in designing the proposed federation. However, at the first convention the delegates were chosen by the legislatures of each colony and it was intended that any proposed constitution would be referred ultimately to each colonial legislature for approval, while at the second convention the representatives of all but one of the colonies that attended were chosen by direct vote of the people of each colony and it was agreed that the proposed constitution would be referred, ultimately, to the people of each colony for approval prior to being forwarded to the British Parliament for enactment into law.72 Thus, while the principle of equality of colonies was maintained for both conventions, the way in which the colonies were represented was different. In their deliberations, the delegates regarded this as significant. At both conventions the constitutive equality of the colony-states was understood to imply that they ought to be equally represented in the second chamber of the federal legislature.73 Although an articulate minority thought that this ought not to be the case, they were consistently countered by the response that a genuinely federal constitution would—following America and Switzerland, but in contrast to Canada—provide for the equality of representation of the constituent states in the Senate and representation in proportion to population in the House of Representatives. In support of this conclusion it was frequently observed that each colony was an independent political community, making it appropriate for each to be equally represented in the Senate, and that each colony was in a position to insist on its equal rights as a condition of joining the proposed federation.74 As John Quick and Robert Garran later explained, the Senate was the chamber in which the states were represented as “co-equal political communities” and as “corporate parts of the Commonwealth.”75 If the constitutive equality of the colony-states was a principle underlying deliberations in both federal conventions, what was different between them was the exact manner in which delegates were chosen by each colony. This proved to be a distinction with a difference when it came to the design of the Senate and the prescribed means by which the Constitution would formally be amended. Consistent with its nomination by the legislatures of the colonies, the first convention provided that senators be chosen by the state legislatures and stipulated an amendment process requiring any proposal to be approved by an absolute majority of conventions held in each constituent state.76 Duncan Gillies explained that this followed from the proposition that the federation was based on the consent of each colony and that each colony would therefore require, and be entitled to, an equal say in the amendment of the Constitution.77 At the second convention, while the principle of the constitutive equality of the states continued to be insisted upon, the conceptual foundation of the federation was recast in more directly democratic terms. Having been directly elected by the people of four of the colonies, the members of the second convention decided the Senate would be elected directly by the people of each state and the Constitution could only be amended by a referendum which secured the approval of a majority of voters in a majority of states and a majority over voters of the federation as a whole.78 The people of the colonies had played a direct role in electing delegates to the convention and it was accepted that they would also play a direct role in ratifying the Constitution. It followed that the people of each state should also play a direct role in electing their representatives in the Senate and approving any proposed amendments to the Constitution. In this way, the formative basis of the Constitution was regarded as offering both principled and pragmatic reasons for adopting a particular approach to the design of the senate and the amendment process.79 The draft constitution produced by the second convention was enacted into law by the British Parliament in the form of the Commonwealth of Australia Constitution Act in 1900. The preamble to that Act put it succinctly: the “the people” of each of the individually named colonies had “agreed to unite in one indissoluble Federal Commonwealth.” The term “indissoluble” was used to counter the inference that the states might be entitled to secede from the federation, as had been attempted in the USA.80 But although they were aware of the centralization that occurred following the American Civil War and Reconstruction Amendments, the Australians continued to believe that the Australian federation should be founded upon the consent of the people of each colony. In this respect, the makers of the Australian Constitution deliberately adopted the American model, rather than the Canadian. Madison’s analysis in Federalist No. 39 was in this respect highly influential.81 The Commonwealth of Australia Constitution Act 1900 (U.K.) consists of nine sections (known as covering clauses), the last of which contains the “Constitution of the Commonwealth,” which itself consists of 128 sections. While the covering clauses could only be amended by the British Parliament, a local power to amend the Constitution by dual referendum was included, as well as an extraordinary capacity to exercise the powers of the British Parliament within Australia, conferred on the Australian Parliament acting upon the request or with the consent of the state legislatures (§ 51(xxxviii)). Notably, therefore, it was recognized that any exercise of imperial constitutive power within Australia by Australian political institutions would need the consent of both the Commonwealth and the states.82 By drafting a constitution with these characteristics, the Australians openly stated they were seeking to secure almost complete constitutional independence.83 As the balance of power between the Empire and the colonies gradually shifted during the twentieth century, these provisions became increasingly important. As it had for Canada, the Statute of Westminster 1931 (U.K.) gave the Australian Parliament power to legislate inconsistently with any British statute insofar as it was part of Australian law,84 except as necessary to maintain the supremacy of the Australian Constitution and the allocation of powers between the Commonwealth and the states.85 It also acknowledged that the British Parliament would no longer legislate for Australia unless Australia expressly requested and consented to it.86 However, unlike Canada, in Australia the legislative powers of states are general, not specific, and are held concurrently with the Commonwealth’s specific list of powers.87 This is because the logic underlying the Australian federation was rigorously aggregative: the states were conceived of as agreeing to the formation of a federal system in which they would “continue” to exercise their general legislative powers (sections 106 and 107), subject only to specific powers conferred upon the Commonwealth.88 The Statute of Westminster therefore had to prevent the Commonwealth from enacting laws on matters within the legislative authority of the states without giving rise to the inference that those matters consist of an explicitly limited set of topics.89 Somewhat convoluted language was necessary to achieve this.90 The most far-reaching step came in 1986, when the British Parliament finally abdicated all authority to legislate for Australia. The process was comparable to the Canadian experience but reflected the subtly different constitutional status enjoyed by the Australian Commonwealth and its constituent states. Two substantively identical Australia Acts were used, one enacted by the British Parliament upon the request and consent of the Australian Government pursuant to the Statute of Westminster,91 the other enacted by the Australian Parliament upon the request and consent of all of the state legislatures pursuant to section 51(xxxviii) of the Australian Constitution.92 The Australia Acts provided for the termination of the British Parliament’s authority to legislate for Australia.93 Just as the Statute of Westminster had affirmed the power of the Canadian and Australian federal legislatures to make laws inconsistent with imperial statutes, the Australia Acts also affirmed the capacity of Australian state legislatures to make laws inconsistent with imperial statutes.94 But as in Canada, once the federal and state legislatures were freed from imperial restraints, it was necessary to preserve the binding authority of the Commonwealth of Australia Constitution Act.95 It was also necessary to specify how the Australia Acts and the Statute of Westminster might be amended in the future. Consistent with the enactment of the Australian version of the Australia Acts on the basis of the section 51(xxxviii) procedure, it was provided that the Australia Acts and Statute of Westminster can be amended by the Commonwealth Parliament at the request or with the concurrence of all the state legislatures.96 Several Australian judges have suggested that, although at the time of federation the Australian Constitution owed its legally binding force to the sovereign authority of the British Parliament, after the passage of the Australia Acts the Constitution must be understood to derive its legitimate authority from autochthonous sources, such as the ratification of the Australian Constitution by the voters of the Australian colonies in the 1890s.97 Some have even said that “ultimate sovereignty” now rests in the Australian people.98 Notably, however, the process by which the Australian Constitution was patriated, and the new constitutional provisions enacted as part of the patriation package, reflected the fact that Australia is a “federal commonwealth” composed of constituent states.99 As in Canada, the formative basis and evolution of Australia’s constitutional arrangements, including its amendment procedures, have been shaped profoundly by the federal nature of the polity and its substantively aggregative origins. The Constitution may originally have been Westminster-derived, but as the British Parliament’s authority has receded, the federal features of the system have been affirmed, and in important respects strengthened. 4. India Like the Canadian and Australian Constitutions, the Constitution of India emerged out of a colonial context and needs to be understood in the light of the shifting balance of power between the British Empire and the people of India—a vast plurality of peoples, distinguished ethnically, religiously, linguistically, and politically.100 Unlike Canada and Australia, however, the point of departure in India was different: the Constitution was formed after independence, not before it. From a British point of view, the constitutional evolution of India can be traced to a succession of seventeenth-century royal charters establishing the forerunners of what became the East India Company. Although a mercantile body, the East India Company was granted significant powers of governance and military control over its various Indian possessions. These it exercised until the company’s rights were vested in the British Crown pursuant to the Government of India Act 1858, following a major rebellion in 1857–1858 sometimes known as India’s First War of Independence. In this context, the constitutional premise of the British Raj was the assertion of what had been called the “undoubted sovereignty” of the United Kingdom over its Indian possessions.101 As Desika Char has observed, “the supreme power over Indian affairs lay with the British Parliament, and the several authorities administering India exercised only the powers delegated to them by its enactments.”102 The system of British administration of India passed through many iterations, forced upon them by the extraordinarily difficult challenge of governing the densely populated and vastly complex subcontinent. British rule involved various techniques of engagement (trade, regulation, administration, coercion, repression) and unique structures of governance for different parts of the subcontinent (presidencies, major provinces, minor provinces), alongside specially negotiated relationships with a host of princely states which, although internally autonomous, from a British point of view were considered subject to the suzerainty of the British Crown.103 Despite the existence of many local and provincial institutions of administration and governance, the Supreme Court of India described the imperial system as it existed in 1858 as essentially “unitary and highly centralized,” a system in which there was a “chain of responsibility” from the Secretary of State in London, via the Central Government, to the Provincial Governments.104 Professor Keith similarly observed that although local legislatures had been established, their “essential position” was one of “complete subordination in administration and legislation to the centre.”105 The autocratic and centralized nature of British rule in India was somewhat moderated by a succession of Government of India Acts, passed in 1909, 1919, and 1935. The Act of 1909, for example, authorized the governor general to expand the system of legislative councils established in the provinces, while also largely maintaining the central government’s control.106 The Act of 1919 went further, announcing an official policy of “gradual development of self-governing institutions, with a view to the progressive realisation of responsible government in British India as an integral part of the empire.”107 The system of “dyarchy” established by the Act involved the classification of subjects of government administration as either “central” or “provincial,” with provincial matters in turn distinguished into “transferred” subjects administered by local governments responsible to predominantly elected legislative councils, and “reserved” matters administered by the governor and his executive council. The extent of devolution remained limited, however. The governor general had authority to determine the allocation of responsibilities, provincial laws required his assent, and the central legislature could still make laws on any matter, whether central or provincial.108 As the Supreme Court of India later observed, despite this decentralization, the government remained essentially unitary.109 For various reasons, the system of dyarchy was far from meeting the expectations and aspirations of Indian activists, and was replaced by the Government of India Act 1935, which acceded further to Indian demands by devolving power more extensively.110 Indeed, according to Professor Keith, the new scheme exhibited “all the normal characteristics of federal government,” including the existence of a rigid constitution, a division of powers and judicial review.111 However, Keith also remarked that, unlike Canada and Australia, where the federation was created by an agreement among self-governing colonies, in India the provinces had not been self-governing but were already “united under the control of a central government with plenary powers” and were therefore “wholly subordinate divisions of a unitary state.”112 This had implications for several features of the new scheme. First, the continuing supremacy of the British Parliament was expressly asserted and the Parliament maintained exclusive power to alter the Act.113 Second, although the Act appeared to confer the rudiments of responsible government, there were many “safeguards” which enabled British authorities to intervene when deemed necessary. Third, the method by which legislative powers were federally allocated involved three lists: a list of exclusive central powers, a list of exclusive provincial powers, and a list of concurrent powers. This was very different from what had occurred in the USA and Australia, where the general legislative powers of the existing states “continued” or were “reserved,” subject to the specific competences conferred upon the federal legislature. However, the scheme never really came into effect, largely because the princely states faced the prospect of a significant loss of autonomy and refused to join the federation.114 On the Indian side, the picture was highly complex. Organizations such as the Indian National Congress (established in 1885) and the All-India Muslim League (established in 1906) pursued their particular political goals, ranging from home rule to outright independence, and from communal representation to outright partition. The Purna Swaraj (Declaration of the Independence of India) promulgated by the Indian National Congress in 1930 asserted the “inalienable” rights and freedoms of “the Indian people,” the right of the people to alter or abolish any government that oppresses them, and the proposition that “India must sever the British connection and attain Purna Swaraj, or complete independence.” What exactly this independence would entail and the means to accomplish it were not determined. In 1937, however, the National Congress officially adopted the proposal that an all-India constituent assembly be convened as the means by which the Indian people “as a whole” might exercise their inherent right to constitutional self-determination.115 In the context of World War II, the British finally acceded to Indian calls for a constituent assembly, proposing the assembly settle the terms of a complex, multilayered system involving three subfederations: a group of Muslim-majority provinces in the northwest, a group of Muslim-majority provinces in the northeast, and a group of non-Muslim majority provinces in the south. The National Congress and Muslim League initially accepted the plan, at least in form, and a provisional government was established under the leadership of Pandit Jawharlal Nehru. However, the substance of the plan was not acceptable to either side: the Congress objected to the absorption of certain Hindu-majority regions into the Muslim-dominated northwest, while the League pressed for the establishment of Pakistan as an independent nation. On matters as fundamental as these a compromise could not be reached and the League refused to join the constituent assembly.116 With India on the verge of civil war, the British signalled their intention to withdraw altogether by enacting the Indian Independence Act 1947. The Act relinquished suzerainty over the princely states, partitioned British India into two independent dominions of India and Pakistan, brought to an end the unilateral authority of the British Parliament to legislate for India and Pakistan, and conferred authority upon separate constituent assemblies to establish new constitutions for the two dominions.117 From an Indian point of view, independence had been secured. It was now the task of the Constituent Assembly to draft a new constitution in the name of the Indian people. However, exactly what independence meant, and how the will of the people would be expressed through the Constituent Assembly, remained to be determined. At stake was the highly evocative idea of Swaraj or self-rule. Mahatma Gandhi understood it this way: Independence begins at the bottom. Thus, every village will be a republic or panchayat having full powers. It follows, therefore, that every village has to be self-sustained and capable of managing its affairs even to the extent of defending itself against the whole world. . . . In this structure composed of innumerable villages, there will be ever widening, never ascending circles. Life will not be a pyramid with the apex sustained by the bottom. But it will be an oceanic circle whose centre will be the individual. . . . Therefore the outermost circumference will not wield power to crush the inner circle but will give strength to all within and derive its own strength from it.118 Gandhi was conscious of the idealistic nature of his vision for India. When asked about the capacity of the Constituent Assembly to realize these ideals, he noted, on the contrary, that many others wished for India to have “a strong centre and build the whole structure around it.”119 In the upshot, this latter view prevailed. Succeeding, in a very real sense, to the concentrated powers of governance formerly exercised by British, but now acting in the name of the Indian people, the Constituent Assembly embarked on the challenging task of drafting a new constitution for India. Its claim to act in the name of the people, although contestable,120 was supported to the extent that its members had been chosen by the provincial legislative assemblies or nominated by the princely states, each roughly in proportion to its population.121 From the outset, the Assembly described its objectives as being the establishment of India as an “Independent Sovereign Republic” which derived its “power and authority” from “the people.”122 The overriding objectives of the Constituent Assembly and its working committees, Akhtar Majeed observes, was to “build a united polity out of a highly fragmented and segmented society” and to “develop [a] highly undeveloped country” by building “a modern nation-state.” “[T]he impetus for national unity” was so strong, he points out, that “the subnational identities of citizens were given little consideration.”123 As Bhimrao Ramji Ambedkar, chair of the drafting committee, later put it, the union “was not the result of an agreement by the States to join in a Federation.” Although “the country and the people may be divided into different States for convenience of administration,” he said, “the country is one integral whole, its people a single people living under a single imperium derived from a single source.”124 Accordingly, while it was affirmed that the provinces and states would “retain the status of autonomous Units” within the union, the Constituent Assembly asserted and exercised the power to establish their constitutions and adjust their boundaries.125 The whole process by which the Constituent Assembly was constructed and operated meant the provinces were effectively obliged to be part of the new system of government, and the princely states quickly acquiesced as well. Thus, the provinces and states lacked the strong bargaining power characteristic of federations formed through the aggregation of previously independent states. The result, says Mohit Bhattacharya, was a kind of “devolutionary federation”: a “fundamentally unitary state” which “devolved powers on the units.”126 The consequences for the text and structure of the Indian Constitution were far-reaching. Just as the provinces were represented mostly in proportion to their respective populations in the Constituent Assembly, so representation in the two houses of federal Parliament was largely in proportion to population.127 The legislative and executive powers vested in the institutions of the federal government were extensive, and they included the extraordinary power to overrule the distribution of powers by two-thirds resolution of the Council of States,128 to require state governments to implement federal laws and policies,129 and to intervene in the affairs of states in cases of “emergency,”130 recalling the powers of intervention exercised by British authorities during the colonial era.131 As Ambedkar explained, these features were a deliberate departure from the more “rigid” and “legalistic” federal systems established in the USA and Australia. The Indian Constitution, he said, “can be both unitary as well as federal according to the requirements of time and circumstances.”132 As the Supreme Court of India later observed: The result was a Constitution which was not true to any traditional pattern of federation. There is no warrant for the assumption that the Provinces were sovereign, autonomous units which had parted with such power as they considered reasonable or proper for enabling the Central Government to function for the common good. The legal theory on which the Constitution was based was the withdrawal or resumption of all the powers of sovereignty into the people of this country and the distribution of these powers . . . between the Union and the States.133 The prescribed mechanisms for amending the Constitution followed a similar pattern, reflecting a desire to ensure that the Constitution could be amended relatively easily, again deliberately in contrast to the amendment clauses of the American and Australian constitutions.134 There are three methods by which the Indian Constitution can be changed, all involving enactments by the Union Parliament, either (a) by simple majority, (b) by special majority of two-thirds of both houses, or (c) by special majority of two-thirds of both houses, together with the consent of at least one half of the state legislatures. Remarkably, method (a) can be used by the Union to create new states by amalgamating or dividing the territories of existing states, and to make alterations to the territories of the states generally.135 Method (b) also reflects the limited extent to which the states were given a distinct role in amending the Constitution, noting that representation in the two houses is roughly proportional, not equal among the states.136 Notably, method (c) does operate to protect the states in certain respects, including their representation in the Union Parliament, their role in the election of the President, and the division of executive and legislative powers between the Union and the states.137 But given that the states are not equally represented in the Council of States and the distribution of powers can be overridden in various ways, these protections are much weaker than those in many other federations. As Akhtar Majeed has observed, because the states did not enter the federation as independent self-governing polities, they were not in a position to demand “an inherent right to share in the amending process, except insofar as the Constitution provides for state legislative participation.”138 The Indian Constitution was meant to be flexible. It has been formally amended some 100 times since its establishment in 1950. Many amendments have been highly controversial. Several have been challenged in the Supreme Court, which has responded by developing an extraordinary doctrine of unconstitutional amendments.139 In the earlier cases, the ground of challenge was that certain laws purporting to amend the Constitution contravened Article 13, which provides that “any law” which takes away or abridges the fundamental rights conferred by Part III of the Constitution shall, to the extent of the contravention, be void. Although this argument was initially rejected by the Supreme Court,140 it was controversially accepted in Golak Nath v. State of Punjab.141 Part of the argument in Golak Nath was that, unlike the constitutive authority that had been exercised by the people through the Constituent Assembly, the power to amend the Constitution was merely a special kind of legislative power that must be exercised in a manner consistent with the requirements of Part III. A close majority of 6 to 5 accepted this line of argument, although they applied it only prospectively, leaving existing amendments undisturbed but requiring future amendments not to interfere with the fundamental rights in Part III. The Union Parliament attempted to neutralize Golak Nath by passing the Twenty-fourth Amendment to the Constitution. This amendment altered Articles 13 and 368 to make explicit that nothing in Article 13 would apply to any amendment of the Constitution made pursuant to Article 368 and that the power of the Parliament conferred by Article 368 was an exercise of “constituent power” unlimited by Part III. The Twenty-fourth Amendment was challenged in Kesavananda Bharati Sripadagalvaru v. State of Kerala.142 In what is one of the longest set of judgments ever delivered by a court, the Supreme Court upheld the constitutional amendments and overruled Golak Nath. However, a close majority of 7 to 6 also held that, although the amendment procedure was not limited by the fundamental rights requirements of Part III, it could not be used to interfere with the “basic structure and framework” of the Constitution.143 It is difficult to overestimate the significance of the basic structure doctrine. The Forty-second Amendment, enacted in 1976 during an emergency proclaimed by the Congress government of Indira Ghandi, introduced an extraordinarily large number of changes to the Constitution which expanded the power of the Union and limited the power of the Supreme Court. These included the insertion of two clauses into Article 268, the first providing that no amendment to the Constitution under Article 268 could be “called in question in any court on any ground” and the second declaring there was “no limitation whatever on the constituent power of the Parliament” to amend the Constitution “by way of addition, variation or repeal” pursuant to Article 268. These amendments, which were challenged in Minerva Mills Ltd. v. Union of India,144 were held by the Supreme Court to be contrary to the basic structure doctrine and therefore invalid. The basic structure doctrine depends on the way in which popular sovereignty and constituent power are conceptualized.145 As Chief Justice Sikri put it in Kesavananda, the principles of interpretation to be applied to Article 368 are those appropriate to “a Constitution given by the people to themselves.”146 Justices Shelat and Grover similarly reasoned from the premise that the “basic theory” of the Constitution is that the “Pouvoir Constituent” is vested in the people and was exercised by the Constituent Assembly, a premise which supported the conclusion that the power conferred by Article 368, being limited, could not be enlarged “by the body possessing the limited power.”147 As such, the basic structure doctrine appears to rest on a hierarchical relationship between (1) the constituent authority presupposed by the Constitution and (2) the special amendment processes stipulated by the Constitution, such that while the “ordinary” provisions of the Constitution can be altered by the stipulated amendment processes, the basic structure can only be altered by the constituent authority itself. Of course, this begs as many questions as it answers, especially regarding the exact identity of the constituent authority and how, in practice, it might ever be invoked. Although the federal features of the Indian Constitution are now receiving more attention and protection,148 it is difficult to conceive the constitutive authority upon which the Constitution is founded other than in fundamentally unitary terms. 5. United Kingdom The United Kingdom has long been classified as a unitary state. However, such has been the transformation introduced by the system of devolution that it is not outside the bounds of credibility to debate whether it may have been transformed into a kind “federation” or, at least, how close it is to becoming one, and whether such a transformation should occur.149 Scotland, Northern Ireland, and Wales each now has its own directly elected legislature and responsible government exercising independent powers of self-government over legally defined matters, the scope of which is determined by the Supreme Court of the United Kingdom acting as the final adjudicator of disputes concerning such matters. What is more, the devolution arrangements are laid down in statutes enacted by the British Parliament which it is politically, if not legally, unable to amend without the consent of the devolved governments.150 Such features have led no less an authority than Vernon Bogdanor to conclude that the United Kingdom is already, in substance, a kind of federation.151 There remain important differences, however, between the system of devolution in the United Kingdom and most mainstream federations, as Ronald Watts has documented.152 Most prominent among these is the absence of a supreme written constitution, binding both the British Parliament and the devolved legislatures.153 The devolution statutes are binding on the devolved legislatures by virtue of the authority of the British Parliament. It may be politically impossible for the Parliament to amend the devolution statutes without the agreement of the relevant constituent political communities,154 but it remains within the Parliament’s legal power to do so, and could certainly happen in extraordinary circumstances, as has occurred in Northern Ireland.155 Second, while constitutional asymmetry is a characteristic of many federal systems, British devolution is asymmetrical in a very fundamental sense. Not only is each devolution statute tailored to the particular constitutional and political conditions of each of the three devolved communities, but England, which contains 84 percent of the population of the United Kingdom, is governed directly by the Parliament at Westminster and has no devolved institutions of its own.156 As a consequence, the people of the devolved communities elect representatives to the British Parliament who have the right to vote on laws affecting only England, whereas laws enacted by the devolved legislatures remain matters for representatives elected by the people of Scotland, Northern Ireland, and Wales, respectively.157 Moreover, none of the devolved communities are entitled to special territorial representation as such within the British Parliament, unlike most federations, where representation of the states within the federal legislature is a common feature. The constitutional premise of British devolution is the political identity of the United Kingdom as a union of England, Wales, Scotland, and Northern Ireland established by a succession of acts passed by the respective parliaments of those countries.158 These statutes, and the treaties they implemented, created a political union governed under the ultimate authority of the Parliament at Westminster. According to orthodox legal theory, the British Parliament is the sovereign lawmaking institution within the United Kingdom. Although the United Kingdom is a union of four previously independent nations, the union is governed by a Parliament possessing effectively sovereign legislative power.159 Devolution in the United Kingdom is accordingly premised on the authority of the Westminster Parliament to establish the devolved legislatures and governments and to bestow powers upon them. The constitutive documents of British devolution are statutes formally enacted in accordance with the ordinary legislative processes of the Parliament.160 The original power of the Parliament to legislate for the United Kingdom of Great Britain and Northern Ireland is taken for granted, and its continuing power to legislate for Wales, Scotland, and Northern Ireland is explicitly affirmed in the devolution statutes,161 with the consequence that amendments to the statutes also have to be enacted by the British Parliament, save to the very limited extent that a devolved legislature has been granted power to amend them directly.162 As in Canada, Australia, and India, the devolution statutes were enacted by the Parliament in response to local agitation. This was certainly the case for the grant of home rule to Ireland and later Northern Ireland.163 Indeed, such was the effectiveness of Irish resistance during the Irish War of Independence that the United Kingdom was forced in 1921 to enter a form of treaty with representatives of the nascent Irish Free State to bring hostilities to an end. These events gave rise to competing interpretations of the nature of the Constitution of the Irish Free State (1922),164 an Irish interpretation attributing its binding force to its adoption by the self-professed Third Dáil Eireann sitting as a constituent assembly and a British interpretation according it legal force by virtue of its enactment as a schedule to the Irish Free State (Constitution) Act 1922.165 The Anglo-Irish Treaty and the Irish Free State (Agreement) Act 1922 also gave Northern Ireland the right to opt out of being part of the new Irish Free State, which it exercised. In the context of continuing troubles in Northern Ireland, British statutes granting devolved powers of self-government to Northern Ireland have even provided that Northern Ireland may cease to be part of the United Kingdom and become part of a united Ireland with the consent of the majority of its people voting in a plebiscite.166 Scottish devolution was also fomented by local agitation, led by organizations such as the Scots National League, Scottish National Party, Scottish Covenant Association, Campaign for a Scottish Assembly, and Scottish Constitutional Convention. Documents prepared by the last two of these organizations, A Claim of Right for Scotland (1988) and Scotland’s Parliament, Scotland’s Right (1995), set out the case for devolution in radical terms. The first document contained an outright assertion of “the sovereign right of the Scottish people to determine the form of government best suited to their needs” and committed its signatories to the project of agreeing on a scheme for a Scottish Parliament, mobilizing “Scottish opinion,” securing “approval of the Scottish people,” and asserting “the right of the Scottish people” to ensure its implementation. The second document presented a blueprint for Scottish devolution which crystallized the resolve of the British Government to develop a White Paper on the topic, Scotland’s Parliament (1997), and ultimately to enact the Scotland Act in 1998 following the positive result of a referendum on devolution held in Scotland in 1997. The use of referendums to enable the people of each of the devolved communities to express their will on questions of devolution and independence has become an established practice, with referendums held in Scotland in 1979, 1997, and 2014; Wales in 1979, 1997, and 2011; Northern Ireland in 1973 and 1998; and North East England in 2004, in addition to referendums on membership of the European Community in 1975 and the European Union in 2016. The Scottish Government’s argument that it was within the competence of the Scottish Parliament to hold a referendum on Scottish independence,167 and the willingness of the British Government to facilitate the referendum, held in 2014, are recent illustrations of the way in which nationalist politics within the United Kingdom has influenced the exercise of the sovereign powers formally vested in the British Parliament. The undertakings given by the leaders of the three main political parties before the independence referendum, the report of the Smith Commission, and the resulting Scotland Act 2016 enacted by the Parliament offer yet further evidence of how agitation for rights to local self-government can precipitate considerable constitutional change in a federative direction. As to the constitutive foundations of the system, while any future changes to the devolution arrangements in the United Kingdom must be enacted by the British Parliament, well-established constitutional conventions require that such laws only be enacted with the consent of the devolved legislatures. The right of the peoples of Scotland, Wales, and Northern Ireland to determine their constitutional destinies is thus acknowledged, but it is also recognized that the British Government and Parliament, representing the people of the United Kingdom as a whole, also have an essential role in settling the fundamental features of the British Constitution. In this respect, the situation in the United Kingdom resembles that of Canada and Australia prior to the enactment of the Statute of Westminster 1931. The constitutional experience of Canada and Australia demonstrates that Westminster-derived systems of government can secure substantial degrees of constitutional autonomy and independence, and that this can occur through processes that do not involve an abrupt revolutionary assertion of autochthony. It also demonstrates that such processes can establish the ensemble of institutions, powers, and procedures necessary for a functioning federal system, including a binding, written constitution. British devolution resembles such systems insofar as it establishes devolved legislatures and responsible governments exercising independent powers of government pursuant to the devolution statutes. However, the British system is significantly different from the Canadian and Australian federations in that it does not have a legally entrenched written constitution, there are no devolved institutions of governance for England, and there is no system of territorial representation of the constituent nations within the British Parliament. Accordingly, many of the proposals for reform in the aftermath of the Scottish independence referendum were directed to moving the British system distinctly closer to the Canadian and Australian systems, and changes introduced by the Scotland Act 2016 go at least some way toward securing these goals. Many of the remaining disagreements about exactly what further changes should be implemented in the United Kingdom concern features that these federal systems have and the British system lacks.168 The day after the Scottish independence referendum, the British Prime Minister announced the establishment of a Commission under Lord Smith of Kelvin aiming to secure an agreement among all parties represented in the Scottish Parliament concerning further powers to be devolved to Scotland. Notably, the recommendations of the Smith Commission were premised on “the sovereign right of the people of Scotland to determine the form of government best suited to their needs.”169 Its first two recommendations were that the devolved institutions of government in Scotland be recognized as “permanent” institutions and that the Sewel Convention be placed on a statutory footing.170 The British Government showed itself willing to implement these recommendations.171 In the Scotland Act 2016, enacted in response to the referendum, the Scottish Parliament and Government were said to be “permanent part[s] of the United Kingdom’s constitutional arrangements,” it was “declared” that the Scottish Parliament and the Scottish Government are not to be abolished without the consent of the Scottish people in a referendum, and it was “recognised” that the British Parliament would “not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”172 These were significant concessions. However, there were objections. It was argued that merely to “recognize” and “declare” these matters weakened the effect of the clauses, for they were not positive enactments having full legal force.173 Notably, the relevant provision of the Statute of Westminster was similarly indirect in its language. Rather than baldly purport to cut down the sovereign legislative authority of the Imperial Parliament, it stated that no future Act of the British Parliament would extend or be deemed to extend to a Dominion “unless it is expressly declared in that Act that the Dominion has requested, and consented to, the enactment thereof.”174 By comparison, the Canada Act 1982 and the Australia Act 1986 (somewhat like the Indian Independence Act 1949), were much more categorical: they unequivocally declared that no future British statute would extend to Canada or Australia as part of its law.175 The task of replicating a similar effect within the realm of Great Britain is complicated by two important factors. One is that when the Canadian and Australian Constitutions were patriated, the jurisdiction of the Privy Council to hear appeals from Canada and Australia had been brought to an end, making Canadian and Australian courts the final judicial authorities within their respective jurisdictions.176 Even if British courts might be bound to give effect to a British statute purporting to amend or repeal the Canada Act or the Australia Act, Canadian and Australian courts would not be so obliged and have in fact indicated that they regard the authority of the British Parliament to be permanently extinguished and the theoretical foundation of their respective constitutions to be effectively autochthonous.177 This state of affairs does not exist within the United Kingdom, where the Supreme Court remains the court of ultimate appeal from the courts of England and Wales, Scotland, and Northern Ireland. The second and more fundamental complication lies in the continuing role of the British Parliament, not only as the general legislature for the United Kingdom but as the sovereign legislature upon which the entire system of devolution officially depends. In the case of the United Kingdom, constitutive authority, amending power, and ordinary legislative power are thus formally vested in the same body. Although some movement in this direction has occurred, unless some altogether alternative mechanism for amending the devolution statutes were introduced, the constitutive authority of the British Parliament must in some sense continue. For it is one thing for the authority of the British Parliament to be discontinued in its overseas Dominions, but it is another for it to be discontinued or modified within Great Britain itself. In this respect it is noticeable that the establishment of local constitutional amendment processes in Canada and Australia were considered essential components of the patriation of their respective constitutions. The Scotland Act, by contrast, now merely “recognises” the Sewel Convention and “declares” that the Scottish Parliament and Government will not be abolished without a referendum of the Scottish people. But even if these provisions were stated more categorically, given the principle of parliamentary sovereignty, it is arguable that any such requirements contained in a British statute could themselves be amended by an ordinary enactment of Parliament.178 A similar problem arises in Australia at a state level, because the state constitutions are contained in ordinary statutes enacted by the state legislatures. To prevent some of the more important elements of the Australian state constitutions being amended by simple majorities within the state legislatures, the relevant provisions in the state Constitution Acts are protected by manner and form provisions, which lay down special procedures for amending relevant sections of those Acts. The effectiveness of these procedural requirements originally depended upon an Imperial statute, the Colonial Laws Validity Act 1865 (U.K.), which stipulated that every representative legislature in a colony would have full power to make laws respecting the constitution, powers, and procedure of the legislature, provided such laws were passed in such manner and form required by any relevant law, including any such law enacted by the colonial legislature itself.179 At the time of patriation it was considered necessary to make similar provision in the Australia Acts to ensure the effectiveness of manner and form requirements contained in the state constitutions.180 It is also recognized in Australian law that manner and form provisions must themselves be “doubly entrenched” so they cannot be amended unless the same (or some other) manner and form procedure is followed.181 Otherwise, the manner and form provision could be avoided by first repealing it by ordinary legislation and then proceeding to amend the substantive sections of the Constitution Act.182 Much the same technique of double entrenchment could be used to help protect any special process laid down for amending the devolution statutes within the United Kingdom. However, double entrenchment might not be enough. In Australia, manner and form provisions are given force by imperial statutes that established and conferred legislative power on the state legislatures, but this line of reasoning is not available in regard to the British Parliament itself. If the matter were ever litigated in the United Kingdom the question of the nature of the sovereignty of the Parliament would have to be confronted, and the question would likely turn on considerations similar to those that arose in Jackson v. Attorney General.183 While some of the reasoning in Jackson suggests that such a procedure might well be effective,184 it is not possible to be certain of this,185 not least because the Parliament Acts 1911 and 1949 only bypassed the House of Lords; they did not detract from but rather enhanced the authority of a majority within the House of Commons. Uncertainties about the nature of parliamentary sovereignty contributes to the highly radical view, expressed by some, that a more final settlement of the constitutional fundamentals of British devolution will require a constitutional convention and a ratifying referendum establishing a written constitution for the United Kingdom as a whole. This has led to suggestions that to avoid the over-riding effect of the doctrine of parliamentary sovereignty the permanency of Scottish institutions of government would have to be underwritten by a Scottish referendum and the support of the Scottish Parliament.186 It has also been observed that a constitutional convention might be the pathway by which a written constitution for the United Kingdom could be developed which would function as a “vehicle for making permanent the existence of the three devolved legislatures.”187 When the Scotland Bill 2015 was being debated in the House of Commons, several amendments were proposed to address these issues. The amendments included a proposal that the Scotland Act 1998 be cited as “The Written Constitution of Scotland” and a proposal to establish a standing Scottish Constitutional Convention to conduct reviews and make recommendations to the Scottish and British Parliaments.188 Further expanded legislative and fiscal powers were also proposed, including “full fiscal autonomy,”189 together with provision for territorial representation in the House of Lords by empowering the Scottish Parliament to nominate persons to represent Scotland in the House of Lords roughly in proportion to the population of Scotland within the United Kingdom.190 Following lengthy debate, most of these amendments were either negatived or withdrawn, but they illustrate the way in which the problem of entrenching the constitutional position of Scotland within the United Kingdom is being conceived and debated. As one participant in the parliamentary debate observed, at the heart of the issue is the question of sovereignty. Even a provision that categorically stipulated the Scotland Act could only be amended by referendum might not be enough, as the provision itself might still be avoided by a simple repeal. What is needed, he maintained, was a “fundamental change in the way we do things,” and he suggested this could only be achieved through a written constitution formulated by a constitutional convention.191 If steps such as these were ever to take place, and a written constitution for a federal Britain to result, the constitutive foundations of the United Kingdom would truly begin to resemble those of Canada and Australia. However, the political and constitutional barriers to such a development remain formidable.192 For the moment, a halfway house seems more likely.193 At present, the constitutional system, though changed very significantly, remains fundamentally devolutionary. 5. Conclusions The cases of Canada, Australia, India, and the United Kingdom illustrate the significance of the way effective constitutive power is configured at critical moments when a constitution is brought into being and when its basic features undergo fundamental change. For political systems that have emerged out of territories once forming part of the British Empire, the most critical points in time occur when the external authority of the British Parliament is succeeded by an autochthonous locus of constitutive authority of one kind or another. While such constitutional transitions can be analyzed in terms of a wide array of criteria, in federal or quasi-federal systems, the key issue concerns the manner in which effective constitutive power is distributed between the federal polity and constituent polities. As the cases considered in this article suggest, the configuration of constitutive authority typically operates as a kind of presupposition in constitutional reasoning, as well as a locus of effective political power, which tends to have a systematic effect on the way constituted power is distributed within the resulting federal, or federal-like, system. This has particular application to the location and form of the amending power because the capacity to amend a constitution, though in an important sense a constituted power, is a way of exercising a power that is tantamount to the constitutive authority underlying the entire constitution. The configuration of power within a federal system is typically expressed in a multilayered fashion, beginning with the constitutive authority on which the constitution is based, extending to the amending power by which the constitution can be altered, and including the distribution of ordinary powers of legislation, administration, and adjudication between the federalized polity and its component polities. The constitutional balance of power between polity and polities at any particular point in time is a function of the composition of the institutions that exercise such powers, the procedures they are required to follow when doing so, and the scope or extent of the powers themselves. Every time constitutional power is exercised, a particular aspect of the federal balance is affected, sometimes with relatively specific and limited significance, sometimes with more general and systematic significance, depending on the effect of its exercise on the powers of the other institutions within the constitutional system. The exercise of constitutive authority at the very establishment of a federation is significant in a radically transformative sense. When aggregative in origin, the formation of a federation marks a movement in the locus of constitutive authority from a plurality of polities to a federated polity that continues to be composed of those constituent polities, just as the establishment of federation by devolution marks a movement from a unitary polity to system of federated polities. When the federations and quasi-federations considered in this article are compared, it seems evident that Canada and especially Australia belong on the aggregative side of the spectrum, while the United Kingdom and India belong on the devolutionary side, although aggregative and devolutionary features can be identified in all four systems in some respect or another.194 As such, the characterization of a federal system as either aggregative or devolutionary is usually a matter of degree. Thus, in a largely aggregative federation, the constituent polities may nonetheless have been only relatively autonomous; they may have already been committed to one another in a relatively weak “confederal” arrangement which they agree to make stronger. Australia, like the USA and Switzerland, is an example. In these three cases, the federal constitution was preceded by a looser confederal relationship between the constituent states. On the other hand, a unitary state may already have established a plurality of self-governing provinces that possess limited measures of autonomy. In such cases the governing institutions of those provinces may play an important role in agitating for the conferral of more devolved powers. Canada, Australia, India, and the United Kingdom, in different ways, are examples. In all four cases, formal constitutive authority was vested originally in the British Parliament but was later devolved to local governing institutions in response to local agitation. In Canada, Australia, and India, the British Parliament had repeatedly exercised its authority to divide, amalgamate, and alter the boundaries of particular colonies, and, in the case of Canada, it did so in the very act of establishing the federation. Although federations are in a constant state of constitutional evolution and development in terms of the balance of power between polity and polities across all these dimensions, such changes remain constrained and shaped by the existing configurations of constitutive and constituted authority. Thus, constitutively aggregative systems, like Australia, the USA, and Switzerland, even as they manifest to varying degrees tendencies toward increasing aggregation and thus centralization of power,195 nonetheless presuppose and tend to preserve a relative degree of independence and autonomy for their constituent states, expressed especially in the construction of the amending power and also, in certain respects, the configuration of ordinary legislative, administrative, and judicial powers. Similarly, but as reverse mirror images, predominantly devolutionary systems such as the United Kingdom, even as they often tend to manifest an overall trajectory toward disaggregation and decentralization, nonetheless presuppose and tend to preserve the originally unitary nature of the constitutive authority, expressed especially in the construction of the amending power and, in some respects, the distribution of ordinary powers of governance. These observations can be made more precise by conceiving the conceptual space as a matrix, defined along one axis by the distinction between constitutive authority, amending power, and the ordinary constituted powers of legislation, administration, and adjudication, and defined along the other axis by the distinction between institutional composition, prescribed procedure, and field of competence. The case studies considered in this article suggest that there is generally more flexibility in a constitutional system in regard to the operation of the ordinary constituted powers of legislation, administration, and adjudication than there is in relation to the amending power and especially the constitutive authority upon which the whole constitution rests. The case studies also suggest that constitutional change tends to occur more easily and frequently in relation to the competences exercised by particular institutions than with respect to the procedures according to which they are required to operate and the constitutional rules according to which their composition is determined. As a consequence of these general tendencies, the greatest flexibility tends to be located in the bottom right-hand corner of the imagined matrix, whereas the greatest stability tends to be located in the top left-hand corner (see Figure 1). Figure 1. View largeDownload slide Constitutional flexibility in federal systems Figure 1. View largeDownload slide Constitutional flexibility in federal systems Constitutive authority is generally the most stable element of a constitutional system. The way in which a particular locus of constituent authority operated in the formation of a particular constitution is a matter of historical fact, which does not change, even if prevailing interpretations of the relevant evidence may possibly change. Moreover, the legitimacy of the entire constitutional order depends on how the constitutive authority underlying the constitutional order is conceived, which also contributes to its stability. A change in the locus or nature of the constituent authority is nothing less than a constitutional revolution. The amendment clauses of written constitutions are also relatively stable, largely due to their association with the constitutive fundamentals of the constitution. Amendment clauses stipulate the rules by which the text of the constitution can lawfully and legitimately be changed. Changes to the rules of change within a constitutional system are profound events. By contrast, changes in the distribution of legislative, executive, and judicial power are relatively more frequent, although their frequency varies from one constitutional system to another. As a consequence, while over the long term all constitutions are in a state of flux, some aspects change more frequently and readily than others. In this respect, it is important to consider the composition, procedures, and competences of the political institutions established by federal constitutions. The constitutions considered in this article tend to entrench the compositional features of their institutions more deeply than the competences exercised by those institutions, and the depth of such entrenchment once again appears to be influenced by the extent to which the federal system is aggregative or devolutionary. Thus, while each of the four constitutional systems considered in this article has its own particular constitutive logic and evolving balance of polity and polities, there seem to be certain general patterns of constitutional ordering evident in each case. Moreover, the formative grounds of each federal system, whether aggregative or devolutionary, contribute to the development of assumptions that underlie constitutional reasoning in each country, as contested as that reasoning may sometimes be. Thus, no matter how much the principle of federalism may have come to be recognized and applied in the interpretation of the Indian Constitution, the Supreme Court remains 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 centralized judicial interpretation of the Australian Constitution may have become, the High Court has continued to conceive the Constitution as constitutively federal in ways and to an extent that simply cannot obtain in countries like India and the United Kingdom. The basic settings are fundamentally different. It would take a constitutional revolution in the fullest sense of the word to change this. Placing federal constitutions into comparative perspective offers a vantage point from which the relative plausibility of particular interpretations of each constitution can be assessed. This is one of the very important things that comparative inquiry can do, especially when pursued in a manner that Sujit Choudhry has called “dialogical.”196 Rather than depend solely upon debatable theses about normative universality or convergence among constitutional systems,197 comparative analysis can be directed to highlighting differences, as well as similarities, and to tracing the systemic effects of these points of difference and similarity in each constitution. By taking into account what Cheryl Saunders has called the “multiple layers of meaning” that may potentially be discerned in constitutional systems,198 comparative constitutional law can engender “a keener awareness of the particular,” and help “to expose the factual and normative assumptions underlying . . . [a particular] constitutional order,” thus opening for “discussion and contestation those characteristics which had remained invisible to domestic eyes.”199 The alternatively imperial, aggregative, and devolutionary foundations of a federal or quasi-federal system have enduring and very significant implications for the distribution of powers, institutional design, and amendment procedures adopted thereunder. 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 systematic consequences for the textual and structural features of the constitution, including its formal amendment procedures.200 This is because the exact way in which constitutive authority is configured operates as a kind of presupposition in constitutional reasoning, as well as a locus of effective political power, which tends to have a systematic effect on the way 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 generalized explanation of the formation and amendment of federal constitutions understood comparatively. The support of Australian Research Council grant FT100100469 is gratefully acknowledged. This article began as a paper presented at Thinking About Federalism(s) Beyond the US Experience, a conference held at Yale Law School on October 29–30, 2015. My thanks to the organizer of the conference, Judith Resnik, and to conference participants, especially Olivier Beaud, Jean-François Gaudreault-Desbiens, Jamal Greene, Rick Hills, Vicki Jackson, Amnon Lev, Christophe Schönberger, and Neil Walker, for comments on the paper. Aspects of the paper were presented in preliminary form at seminars held at San Diego Law School on December 2, 2014, George Mason University Law School on January 20, 2015, and Stanford Constitutional Law Center on January 27, 2015. I am grateful to Larry Alexander, Michael McConnell, Michael Rappaport, Steven Smith, and Ilya Somin for organizing these seminars and for their comments on the paper. Footnotes 1 Xenophon Contiades & Alkmene Fotiadou, Models of Constitutional Change, inEngineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA 417 (Xenophon Contiades ed., 2013); Carlo Fusaro & Dawn Oliver, Towards a Theory of Constitutional Change, inHow Constitutions Change: A Comparative Study 405 (Dawn Oliver & Carlo Fusaro eds., 2011). 2 In addition to the sources cited above, see also, e.g., Rosalind Dixon, Constitutional Amendment Rules: A Comparative Perspective, inComparative Constitutional Law 96 (Tom Ginsburg & Rosalind Dixon eds., 2011). 3 John Kincaid & G. Alan Tarr, Constitutional Origins, Structure, and Change in Federal Countries (2005). 4 Contiades & Fotiadou, supra note 1, at 427: “federalism interacts differently with the rest of the factors that influence constitutional change.” Federal constitutions are, typically, difficult to amend: Donald S. Lutz, Toward a Theory of Constitutional Amendment, inResponding to Imperfection: The Theory and Practice of Constitutional Amendment 237, 261 (Sanford Levinson ed., 1995) (showing that of the most difficult constitutions to amend, almost all were federations). 5 In this article I use the terms “constituent” and “constitutive”, in connection with the terms “power” and “authority”, to refer to “the things that a given people [or peoples] in a given time and place understand as competent to make a binding constitution”: Richard Kay, Constituent Authority, 59 Am. J. Comp. L. 715, 716 (1987). 6 E.g.,The Creation and Amendment of Constitutional Norms (Mads Andenas ed., 2000). 7 Contiades & Fotiadou, supra note 1, at 430. 8 See John Kincaid, Comparative Observations, inConstitutional Origins, Structure, and Change in Federal Countries 409, 442–444 (John Kincaid & G. Alan Tarr eds., 2005). 9 For the distinction, seeRonald L. Watts, Comparing Federal Systems ch. 3 (3d ed. 2008); Alfred Stepan, Toward a New Comparative Politics of Federalism, (Multi)Nationalism, and Democracy: Beyond Rikerian Federalism, inArguing Comparative Politics 315 (2001); Roderick A. Macdonald, Kaleidoscopic Federalism, inThe States and Moods of Federalism: Governance, Identity and Methodology 261 (Jean-François Gaudreault-DesBiens & Fabien Gélinas eds., 2005); Nicholas Aroney, Types of Federalism, inMax Planck Encyclopedia of Comparative Constitutional Law (Rainer Grote et al. eds., 2016). 10 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring with Stevens, Souter, Ginsburg, and Breyer, JJ.). 11 Id. at 846 (Thomas, J., with whom Rehnquist, C.J., and O’Connor and Scalia, JJ. joined). 12 H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 Va. L. Rev. 633 (1993). 13 For surveys, seeWalter Hartwell Bennett, American Theories of Federalism (1964); Forrest McDonald, States’ Rights and the Union: Imperium in Imperio, 1776–1876 (2000); John R. Vile, The Constitutional Amending Process in American Political Thought (1992). 14 See infra sections 2 through 5 for details. 15 On comparative method, seeRan Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law 245–253 (2014). 16 Nicholas Aroney, Formation, Representation and Amendment in Federal Constitutions, 54 Am. J. Comp. L. 277 (2006). 17 Documents on the Confederation of British North America 94–95 (G. P. Browne & Janet Ajzenstat eds., 2009) [hereinafter Browne & Ajzenstat]. See alsoDonald Creighton, John A. Macdonald: The Young Politician, The Old Chieftain ([1952 and 1955] 1998). 18 British North America Act 1867 (U.K.) §§ 3, 5, 6. 19 British North America Act 1867 §§ 58, 63, 64, 69, 71, 91, 92. 20 British North America Act 1867 § 22. 21 British North America Act 1867 § 57; see also § 56 on the Queen’s power of disallowance. 22 SeeJohn G. Bourinot, A Manual of the Constitutional History of Canada 77–78, 90, 115 (1888). 23 Only limited powers of amendment were conferred: British North America Act 1867 § 92(1) (amendment of the Provincial constitutions except in relation to the Office of Lieutenant Governor). See also British North America Act 1949, inserting a new § 91(1) into the British North America Act 1867 (enabling amendment of the constitution of Canada, except in regard to matters coming within the exclusive powers of the provinces, etc.). 24 American Colonies Act 1766 (U.K.), also known as the Declaratory Act 1766, enacted following the Parliament’s reluctant repeal of the Stamp Act 1765 (U.K.). 25 Quebec Act 1774 (U.K.); Constitutional Act 1791 (U.K.); British North America Act 1840 (U.K.) (also known as the Union Act 1840). For sources and background, seeAdam Shortt & Arthur G. Doughty, Documents Relating to the Constitutional History of Canada 1759–1791 (1907); William Renwick Riddell, The Constitution of Canada in Its History and Practical Working (1917). 26 Report on the Affairs of British North America (1839). There was also a second rebellion in Upper Canada in 1839. 27 At no point were the Canadian people directly consulted, except that voters in New Brunswick expressed their disagreement with Confederation by voting against the government of Samuel Tilley in 1865: Ged Martin, Introduction, inThe Causes of Canadian Confederation 7 (Ged Martin ed., 1990). For background, seeDonald Creighton, The Road to Confederation: The Emergence of Canada, 1863–1867 (1965); Christopher Moore, 1867: How the Fathers Made a Deal (1997). 28 Browne & Ajzenstat, supra note 17, at 34. 29 Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act 5 (Joseph Pope Ed., 1895). The province of Canada was, however, represented by the coalition government of John A. MacDonald, George Brown, and George-Étienne Cartier, each representing one of the three main factions within the province (conservative, liberal, and French). 30 Id. at 5 (emphasis added). 31 Moore, supra note 27, at 94. 32 Quoted in id. at 15. 33 Jeremy Webber, The Constitution of Canada: A Contextual Analysis ch. 6 (2015). 34 Order in Council, May 16, 1871 (British Columbia); Order in Council, June 26, 1873 (Prince Edward Island); Manitoba Act 1870 (Can.); Alberta Act 1905 (Can.); Saskatchewan Act 1905 (Can.); Newfoundland Act 1949 (U.K.). See also Rupert’s Land Act 1868 (U.K.); Order in Council, June 23, 1870 (Rupert’s Land). 35 Jan Erk, Explaining Federalism: State, Society and Congruence in Austria, Belgium, Canada, Germany and Switzerland ch. 4 (2010). 36 Arthur Berriedale Keith, Imperial Unity and the Dominions 138–142 (1916). 37 Alan Cairns, The Judicial Committee and Its Critics, 4 Canadian J. Pol. Sci. 301 (1971). 38 Inter-Imperial Relations Committee, Report, Proceedings and Memoranda (Imperial Conference, 1926), known as the Balfour Declaration, named after the chair of the committee, Lord Arthur Balfour. 39 Statute of Westminster 1931 (U.K.) § 4. 40 Id. § 2(2). This was extended to the Canadian provinces by § 7(2). 41 Statute of Westminster 1931 §§ 7(1), 8. On Australia, see Part 3. 42 Constitution Act 1867 (U.K.) § 92. 43 Statute of Westminster 1931 (U.K.) § 7(3). 44 The path to patriation was a long one. SeePeter C. Oliver, The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada, and New Zealand chs. 5–7 (2005). 45 Canada Act 1982 (U.K.) § 2; Constitution Act 1982 (U.K.) §§ 38–48. Section 1 of the Canada Act gave force to the Constitution Act, the text of which was set out in Schedule B to the Canada Act. The name of the British North America Act 1867 was also changed to the Constitution Act 1867. 46 Reference re: Amendment of the Constitution of Canada (Patriation Reference), [1981] 1 S.C.R. 753, 762–809. The premise of this finding was the proposition that the proposed amendments would affect federal–provincial relationships and the constitutional rights of the provinces. 47 Id. at 874–910. The existence of the convention was adduced from a practice of consultation on the long series of British amendments to the Canadian Constitution. For a critique, see Peter Hogg, Comment, 60 Canadian Bar Review 30 (1982). 48 Peter Hogg, Formal Amendment of the Constitution of Canada, 55 Law & Contemp. Probs. 253, 254 (1992); William C. Hodge, Patriation of the Canadian Constitution: Comparative Federalism in a New Context, 60 Wash. L. Rev. 585, 632 (1985). 49 Reference re: Amendment of Canadian Constitution, [1982] 2 S.C.R. 793. 50 Statute of Westminster 1931 (U.K.) § 4. 51 Id. §§ 2(2), 7(1), and (2). 52 Canada Act 1982 (U.K.) § 2. 53 Compare Statute of Westminster §§ 2(2) and 7(1). 54 Peter W. Hogg, Supremacy of the Canadian Charter of Rights and Freedoms, 61 Canadian B. Rev. 69 (1983). 55 Constitution Act 1982 §§ 38–48. 56 Id. § 38(1). 57 Id. §§ 38(2), 38(3). 58 Id. § 41. These matters include, among other things, the right of each province to a number of members in the House of Commons not less than the number of senators to which the province is entitled to be represented. 59 Id. §§ 38(2), 38(3), 41, 43. 60 An Act Respecting Constitutional Amendments (S.C. 1996, c. 1). 61 Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, 244–245, 250–252. 62 Notably, the amendment clause appears in the Constitution Act 1982 (U.K.), not the main body of the Canada Act 1982 (U.K.). 63 For a discussion, seeDavid Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales ch. 2 (1991). 64 Imperial Act 21 Geo. III c. 56, 1784 (U.K.); Imperial Act 4 Geo. IV c. 96, 1823 (U.K.); Imperial Act 10 Geo. IV c. 22, 1829 (U.K.); South Australian Colonisation Act 1834 (U.K.); Australian Constitutions Act 1850 (U.K.). 65 E.g., New South Wales Courts Act 1787 (U.K.); New South Wales Act 1823 (U.K.); Australian Courts Act 1828 (U.K.); Australian Constitutions Act (No. 1) 1842 (U.K.); Australian Constitutions Act (No. 2) 1850 (U.K.); New South Wales Constitution Statute 1855 (U.K.); Victoria Constitution Statute 1855 (U.K.); Order in Council (Qld), June 5, 1859; Western Australia Constitution Act 1890 (U.K.). 66 Australian Communist Party v. Commonwealth (1950) 83 C.L.R. 1, 263 (Fullagar, J.). 67 Arthur Berriedale Keith, Responsible Government in the Dominions § I, 25–39 (1912). 68 Official Record of the Proceedings and Debates of the Australasian Federation Conference (1890) at 10. 69 Official Report of the National Australasian Convention Debates, Sydney (1891) at 153 [hereinafter Convention Debates, Sydney]. 70 Only very limited changes were made in London by the imperial crown law officers before enactment: Brian K. de Garis, The Colonial Office and the Commonwealth Constitution Bill, inEssays in Australian Federation 94 (A. W. Martin ed., 1969). 71 The six original “colonies” were deliberately called states and not merely provinces: Commonwealth of Australia Constitution Act 1900 (U.K.) § 6. 72 Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution ch. 6 (2009). Queensland did not attend the second convention, but its political leaders took a keen interest in the proceedings, and the colony decided to join the federation in 1899. 73 Convention Debates, Sydney,supra note 69, at 946; Official Report of the National Australasian Convention Debates, Melbourne (1898), at 2525 [hereinafter Convention Debates, Melbourne]. 74 E.g., Convention Debates, Sydney, supra note 69, at 95 (Edmund Barton), 111 (Richard Baker), 159 (Charles Kingston). Contrary views were expressed by a minority of delegates. See, e.g., id. at 68–86 (Alfred Deakin); Official Report of the National Australasian Convention Debates, Adelaide (1897) at 641–649 (Henry Bournes Higgins); Official Record of the National Australasian Convention Debates, Sydney (1897) at 259–265, 345–351 (Higgins). 75 John Quick & Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth 414 (1901). John Quick was an elected delegate of the colony of Victoria at the second federal convention in 1897–1898. 76 Convention Debates, Sydney,supra note 69, at 884, 946, 963–944. 77 Id. at 884–885. The proposed amendment procedure deliberately drew on the precedent established by Article V of the us Constitution. 78 Convention Debates, Melbourne,supra note 73, at 2525, 2543. SeeAustralian Const. §§ 7 and 128. 79 For detail, seeAroney, supra note 72, ch. 11. 80 See Gregory Craven, Secession: The Ultimate States Right ch. 2 (1986). 81 For detail, seeAroney, supra note 72, at 73–78, 103–107. 82 See id. at 4, 329–332. 83 John Reynolds, A.I. Clark’s American Sympathies and His Influence on Australian Federation, 32 Australian L.J. 62, 66 (1958). 84 Statute of Westminster 1931 (U.K.) § 2(2). 85 Id. § 8. 86 Id. § 4. 87 Australian Const. §§ 51, 52, 106, 107. 88 Aroney, supra note 72, chs. 9 and 10. 89 To do so would have suggested that the states possess a specific set of “reserved powers,” a view that was adopted by the High Court of Australia until its landmark decision in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 C.L.R. 129. SeeNicholas Aroney et al., The Constitution of the Commonwealth of Australia: History, Principle and Interpretation ch. 3 (2015). 90 Statute of Westminster 1931 (U.K.) §9(1): “Nothing in this Act shall be deemed to authorise the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia.” 91 Id. § 4. 92 Australia Acts 1986 (U.K.) and (Aust.). This gives rise to an interesting but unresolved question as to which of the two statutes is primarily effective, from the point of view of Australian law, to bring the powers of the British Parliament over Australia to an end. See Sue v. Hill (1999) 199 C.L.R. 462, 490–503 (Gleeson, C.J., Gummow and Hayne, JJ.), relying on the Australian version; see also 526–528 (Gaudron, J.). 93 Australia Acts 1986 (U.K.) and (Aust.) § 1. 94 Id. § 3. 95 Id. § 5. 96 Id. § 15. For more background, seeAnne Twomey, The Australia Acts 1986: Australia’s Statutes of Independence (2010). 97 See Geoffrey Lindell, Why Is Australia’s Constitution Binding?—The Reasons in 1900 and Now, and the Effect of Independence, 16 Fed. L. Rev. 29 (1986). The Canadian debate on this issue has an interestingly different character. SeePeter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? (2d ed. 1993). 98 Australian Capital Television v. Commonwealth (1992) 177 C.L.R. 106, 138 (Mason, C.J.); Theophanous v. Herald & Weekly Times Ltd. (1994) 182 C.L.R. 104, 171, 180 (Deane, J.). But see McGinty v. Western Australia (1996) 186 C.L.R. 140, 274–245 (Gummow, J.). 99 Commonwealth of Australia Constitution Act 1900 (U.K.), Preamble, § 3. For a fuller account, see Nicholas Aroney, A Public Choice? Federalism and the Prospects of a Republican Preamble, 21 U. Queensland L.J. 205 (1999). 100 Balveer Arora, Republic of India, inDiversity and Unity in Federal Countries 200 (Luis Moreno & César Colino eds., 2010). 101 East India Company Act 1813 (U.K.) (also known as the Charter Act 1813). 102 S. V. Desika Char, Introduction, inReadings in the Constitutional History of India 1757–1947, i, lxii (S. V. Desika Char ed., 1983). 103 Id. at lxvii–lxx. See Interpretation Act 1889 (U.K.) §§ 18(4) and (5). 104 West Bengal v. India, A.I.R. 1963 SC 1241; 1964 S.C.R. (1) 371, 393. 105 Arthur Berriedale Keith, The Constitutional History of India, 1600–1935, 183 (1936). 106 Brij Mohan Sharma, Federalism in Theory and Practice 358–361 (1951). 107 Government of India Act 1919 (U.K.), Preamble. 108 Brij Kishore Sharma, Introduction to the Constitution of India 1.15 (7th ed. 2015); Keith, supra note 105, at 259. For a somewhat different view, seeSharma, supra note 106, at 362–369. 109 West Bengal v. India, supra note 104, at 393. 110 Sharma, supra note 106, at 410–425. 111 Keith, supra note 105, at 319. 112 Id. at 319–320. 113 Id. at 322, 376, 488. In some limited respects, the arrangement could be altered by the Crown in Council. 114 West Bengal v. India, supra note 104, at 394; Char, supra note 102, at lxxxiii–lxxxiv. 115 India, Constituent Assembly Debates (New Delhi, 1951), Monday, Dec. 9, 1946 (Dr. Sachchidananda Sinha). 116 Char, supra note 102, at lxxxv–lxxxc. 117 Indian Independence Act 1947 (U.K.) §§ 1, 6, 7, 8. 118 Mohandas Karamchand Gandhi, The Pyramid vs the Oceanic Circle (1946), inHind Swaraj and Other Writings 188, 188–189 (Anthony J. Parel ed., 1997). 119 Id. at 190. 120 SeeSarbani Sen, The Constitution of India: Popular Sovereignty and Democratic Transformations 31–40 (2011). 121 Readings in the Constitutional History of India 1757–1947, lxxviii, 683–691 (S. V. Desika Char ed., 1983). 122 India, Constituent Assembly Debates (Dec. 13, 1946; Jan. 22, 1947), “Objectives Resolutions 1 and 4.” 123 Akhtar Majeed, Republic of India, inConstitutional Origins, Structure, and Change in Federal Countries 180, 183 (John Kincaid & G. Alan Tarr eds., 2005). 124 India, Constituent Assembly Debates, Vol. II, 31–44 (Nov. 4, 1948). 125 India, Constituent Assembly Debates, supra note 122, “Objectives Resolution 3.” 126 Mohit Bhattacharya, The Mind of the Founding Fathers, inFederalism in India: Origins and Development 101–102 (Nirmal Mukarji & Balveer Arora eds., 1992), cited in Alfred Stepan, Toward a New Comparative Politics of Federalism, (Multi)Nationalism, and Democracy: Beyond Rikerian Federalism, inArguing Comparative Politics 9, 321–322 (2001). 127 Indian Const. arts. 80 and 81, Fourth Schedule. 238 of the 250 members of the Council of States (Rajya Sabha) are chosen by the state legislatures in accordance with a formula that is only slightly weighted in favour of less populous states. 128 Indian Const. art. 149; see also id. art. 150. 129 Id. arts. 256, 257. 130 Id. pt. XVIII. 131 Even the manner in which exclusive and concurrent powers were distributed between the Union and the states followed the general scheme of the Government of India Act 1935. 132 India, Constituent Assembly Debates, Vol. VII, “Motion re. Draft Constitution.” 133 West Bengal v. India, supra note 104, at 396. 134 India, Constituent Assembly Debates, Vol. VII, supra note 132, at 43–44 (Ambedkar). 135 Indian Const. arts. 3, 4. An amendment to the Constitution in 1955 stipulated that such proposals must first be recommended by the president and be referred to the legislature of any affected state for the expression of its views, but the power to make the change remains vested in the Union Parliament acting by simple majority. The States Reorganisation Act 1956, enacted in this way, implemented a far-reaching reorganization of the states along linguistic lines. 136 Id. art. 368. 137 Id. art. 368(2). Of a similar nature is the power of the Union Parliament to establish or abolish a legislative council in a state, which requires the consent of two-thirds of the Legislative Assembly of the affected state: id. art. 169. 138 Majeed, supra note 123, at 191. 139 I rely here on Matthew Abraham, The Judicial Role in Constitutional Amendment in India, inThe Creation and Amendment of Constitutional Norms 195 (Mads Andenas ed., 2000); Mahendra Pal Singh, India, inHow Constitutions Change: A Comparative Study 169 (Dawn Oliver & Carlo Fusaro eds., 2011). For background, seeSen, supra note 120, ch. 7. 140 Shankari v. Prasad Singh Deo v. Union of India, A.I.R. 1951 SC 458; Sajjan Singh v. State of Rejasthan, A.I.R. 1965 S.C. 845. 141 A.I.R. 1967 S.C. 1643. 142 A.I.R. 1973 S.C. 1461. 143 Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine ch. 1 (2011). 144 A.I.R. 1980 S.C. 1789. 145 Krishnaswamy, supra note 143, at 205: “The concept of sovereignty and its relationship with the constitution is central to any understanding of the legitimacy of the basic structure doctrine.” 146 Supra note 142, ¶ [13]. 147 Id. ¶ [571]. 148 See S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918, and the discussion in Manish Tewari & Rekha Saxena, The Supreme Court of India: The Rise of Judicial Power and the Protection of Federalism, inCourts in Federal Countries: Federalists or Unitarists? 223 (Nicholas Aroney & John Kincaid eds., 2017). 149 See e.g., Andrew Blick & George Jones, A Federal Future for the U.K.: The Options (2010); Home Rule and Community Rule Commission, Federalism: The Best Future for Scotland (2012); David Melding, The Reformed Union: Britain as a Federation (2013); David Torrance, Britain Rebooted: Scotland in a Federal Union (2014). 150 See, further, Scotland Act 2016, §§ 1 and 2, discussed below. 151 Vernon Bogdanor, Constitutional Reform in Britain: The Quiet Revolution, 8 Ann. Rev. Pol. Sci. 73, 81–84 (2005). 152 Ronald L. Watts, The United Kingdom as a federalised or regionalised union, inDevolution and Power in the United Kingdom 239 (Alan Trench ed., 2007), drawing principally on Alan Trench, id. at 48. Note that these analyses were published prior to the Scotland Act 2012 (U.K.) and Wales Act 2014 (U.K.). 153 Watts, supra note 152, at 250; see also id. at 263–264. 154 The Sewel Convention with respect to Scotland, and similar understandings for Northern Ireland and Wales, stipulate that in all usual circumstances the British Parliament will not legislate in relation to devolved matters, or vary the legislative competence of the devolved legislatures, without their consent: Paul Bowers, The Sewel Convention 2 (2005); Memorandum of Understanding and Supplementary Agreements Between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee (Oct. 2013), ¶ [14]. 155 Northern Ireland (Temporary Provisions) Act 1972 (U.K.); Northern Ireland Constitution Act 1973 (U.K.). Devolution was suspended in Northern Ireland for various periods in the 2000s, including from October 2002 to May 2007. 156 That is, putting aside the system of local government in England. 157 SeeOonagh Gay et al., The West Lothian Question (2011). 158 Laws in Wales Act 1535 (Eng.); Laws in Wales Act 1542 (Eng.); Union with Scotland Act 1706 (Eng.); Union with England Act 1707 (Scot.); Union with Ireland Act 1800 (U.K.); Act of Union (Ireland) 1800 (Ire.); Irish Free State Constitution Act 1922 (U.K.). 159 Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy 165–167 (1999). 160 E.g., Government of Ireland Act 1920 (U.K.); Northern Ireland Constitution Act 1973 (U.K.); Northern Ireland Act 1998 (U.K.); Scotland Act 1978 (U.K.); Scotland Act 1998 (U.K.); Scotland Act 2012 (U.K.); Government of Wales Act 1998 (U.K.); Government of Wales Act 2006 (U.K.); Wales Act 2014 (U.K.); Scotland Act 2016 (U.K.); Wales Act 2017 (U.K.). 161 Scotland Act 1998 § 28(7); Northern Ireland Act 1998 § 5(6); Government of Wales Act 2006 § 93(5). 162 E.g., Scotland Act 1998, Schedule 4, ¶ [4]. Note that § 30(2) also authorizes the Queen by Order in Council to make modifications to Schedule 4 and 5 of the Act. 163 Government of Ireland Bill 1886 (U.K.); Government of Ireland Bill 1893 (U.K.); Government of Ireland Act 1914 (U.K.); Government of Ireland Act 1920 (U.K.); Irish Free State Constitution Act 1922 (U.K.); Irish Free State (Consequential Provisions) Act 1922 (U.K.); Northern Ireland Constitution Act 1973 (U.K.); Northern Ireland Act 1998 (U.K.). 164 The Constitution was enacted as a schedule to the Constitution of the Irish Free State (Saorstat Eireann) Act 1922 (Ire.). 165 State (Ryan) v. Lennon, [1935] I.R. 170; Moore v. Attorney-General for the Irish Free State, [1935] A.C. 484. 166 Northern Ireland Constitution Act 1973 (U.K.) § 1; Northern Ireland Act 1998 (U.K.) § 1. 167 See Nicholas Aroney, Reserved Matters, Legislative Purpose and the Referendum on Scottish Independence [2014] Pub. L. 422. 168 For more detail, see Nicholas Aroney, Devolutionary Federalism Within a Westminster-Derived Context, inThe Scottish Independence Referendum: Constitutional and Political Implications 295 (Aileen McHarg et al. eds., 2016). 169 Smith Commission, Report of the Smith Commission for Further Devolution of Powers to the Scottish Parliament 239, ¶ [20] (2014). 170 Id. at 7, ¶¶ [21]–[22]. A similar proposal to recognize the permanent constitutional status of the Welsh National Assembly and formalize the Legislative Consent Motion procedure for Wales was also recommended: Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers to Strengthen Wales ¶¶ [13.3.23], R.54(a), [13.3.30], R.56 (2014) (hereafter Silk Commission). In the Wales Act 2017 (U.K.) § 1, the permanency of the Welsh Assembly and Welsh Government were accordingly recognized and it was declared that they are not to be abolished without a Welsh referendum 171 UK Government, Scotland in the United Kingdom: An Enduring Settlement 7, ¶¶ [1.2]–[1.4] (2015); UK Government, Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales ¶ [2.2.4] (2015). 172 Scotland Act 2016 §§ 1 and 2, inserting new §§ 28(8) and 63A into the Scotland Act 1998. 173 Devolution (Further Powers) Committee, New Powers for Scotland: An Interim Report on the Smith Commission and the UK Government’s Proposals ¶¶ [41], [47], [61] (2015). 174 Statute of Westminster 1931 (U.K.) § 4. 175 Canada Act 1982 (U.K.) § 1; Australia Act 1986 (U.K.) § 1. Compare Indian Independence Act 1949 (U.K.) § 6(4), which provided that no statute of the British Parliament would apply to India or Pakistan unless it was extended thereto by a law of India or Pakistan. 176 Oliver, supra note 44, 50–53, 95–96. In relation to appeals from the courts of the Australian States, the Privy Council’s jurisdiction was effectively terminated by the Australia Acts 1986 (U.K.) and (Aust.) § 11. 177 Sue v. Hill, (1999) 199 C.L.R. 462, [63]–[64]; Durham Holdings v. New South Wales, (2001) 205 C.L.R. 399, ¶ [9]; Attorney-General (WA) v. Marquet, (2003) 217 C.L.R. 545, ¶¶ [66]–[67]; Mitchell v. M.N.R., [2001] 1 S.C.R. 911, ¶ [129]. 178 Devolution Committee, supra note 173, ¶ [45]. 179 Colonial Laws Validity Act 1865 (U.K.) § 5. 180 Australia Acts 1986 (U.K.) and (Aust.) § 6. 181 Attorney-General (NSW) v. Trethowan, (1931) 44 C.L.R. 394; Attorney-General (WA) v. Marquet, supra note 177. See also R v. Drybones, [1970] S.C.R. 28. 182 Aroney et al., supra note 89, at 625–632. 183 Jackson v. Attorney General, [2005] U.K.H.L. 56; [2006] 1 A.C. 262. SeeColin Turpin & Adam Tomkins, British Government and the Constitution 53–61 (7th ed 2011). 184 Jackson v. Attorney General, supra note 183, ¶ [81] (Lord Steyn). 185 Id. ¶ [113] (Lord Hope); see also id. ¶¶ [161]–[163] (Baroness Hale). 186 Devolution Committee, supra note 173, ¶ [50]. See, similarly, Scottish Government, More Powers for the Scottish Parliament: Scottish Government Proposals 9, 28 (2014). 187 Silk Commission, supra note 170, ¶ [16.8.3]. 188 Scotland Bill 2015 (U.K.), New Clause 6; United Kingdom, Parliamentary Debates, House of Commons, June 15, 2015, col. 26. 189 Scotland Bill 2015, Amendment 89 and New Clause 3; Parliamentary Debates, supra note 188, cols. 25–26. 190 Scotland Bill 2015, New Clause; Parliamentary Debates, supra note 188, col. 26. 191 Parliamentary Debates, supra note 188, cols. 28–29 (Alistair Carmichael); see also id. cols. 71–72 (Pete Wishart). 192 See, e.g., the UK Government’s resistance to a constitutional convention and its insistence on the sovereignty of the UK Parliament as the UK’s alternative to a written constitution: Parliamentary Debates, supra note 188, cols. 90–91, 105–106 (David Mundell). 193 See, e.g.,Independent Commission, Bingham Centre for the Rule of Law, A Constitutional Crossroads: Ways Forward for the United Kingdom (2015). 194 See, similarly, Stepan, supra note 9. 195 See, e.g., John Kincaid, The Rise of Coercive Federalism in the United States: Dynamic Change with Little Formal Reform, inThe Future of Australian Federalism: International and Comparative Perspectives 157 (Gabrielle Appleby et al. eds., 2012); James Allan & Nicholas Aroney, An Uncommon Court: How the High Court of Australia Has Undermined Australian Federalism, 30 Sydney L. Rev. 245 (2008). 196 Sujit Choudhry, Globalisation in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 Ind. L.J. 819 (1999). 197 Jeffrey Goldsworthy, Questioning the Migration of Constitutional Ideas: Rights, Constitutionalism and the Limits of Convergence, inThe Migration of Constitutional Ideas 115 (Sujit Choudhry ed., 2006). 198 Cheryl Saunders, The Use and Misuse of Comparative Constitutional Law, 13 Ind. J. Global Legal Stud. 37, 52 (2006). 199 Sujit Choudhry, Migration as a New Metaphor in Comparative Constitutional Law, inThe Migration of Constitutional Ideas 1, 22–23 (Sujit Choudhry ed., 2006). 200 Aroney, supra note 16. © The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

International Journal of Constitutional LawOxford University Press

Published: May 12, 2018

There are no references for this article.

You’re reading a free preview. Subscribe to read the entire article.


DeepDyve is your
personal research library

It’s your single place to instantly
discover and read the research
that matters to you.

Enjoy affordable access to
over 18 million articles from more than
15,000 peer-reviewed journals.

All for just $49/month

Explore the DeepDyve Library

Search

Query the DeepDyve database, plus search all of PubMed and Google Scholar seamlessly

Organize

Save any article or search result from DeepDyve, PubMed, and Google Scholar... all in one place.

Access

Get unlimited, online access to over 18 million full-text articles from more than 15,000 scientific journals.

Your journals are on DeepDyve

Read from thousands of the leading scholarly journals from SpringerNature, Elsevier, Wiley-Blackwell, Oxford University Press and more.

All the latest content is available, no embargo periods.

See the journals in your area

DeepDyve

Freelancer

DeepDyve

Pro

Price

FREE

$49/month
$360/year

Save searches from
Google Scholar,
PubMed

Create lists to
organize your research

Export lists, citations

Read DeepDyve articles

Abstract access only

Unlimited access to over
18 million full-text articles

Print

20 pages / month

PDF Discount

20% off