The utilization of constitutional space to maximize sub-national autonomy in federations

Oppe, Mark E.

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Abstract

"The comparative study of federal systems has most often focused on the view of federation 'from the top down.' This is particularly true of the study of constitutionalism in federations, in which federal constitutions have received significantly more attention than sub-national constitutions. An emerging concept in the understanding of federal systems from the sub-national perspective is the idea of constitutional space, which is defined as 'the range of discretion available to the component units in a federal system in designing their constitutional arrangements.' Some scholars have suggested that the full utilization of constitutional space can effectively increase the autonomy of sub-national units within a federation. This thesis explores the potential for increased sub-national autonomy through the utilization of constitutional space in a comparative analysis of state and provincial actions in the United States and Canada with regard to same-sex marriage and resource management, and concludes that due to the influence of additional factors in the federal relationship, the utilization of constitutional space by itself is insufficient to increase sub-national autonomy"--Leaf iii

Description

Thesis (M.A.) University of Alaska Fairbanks, 2009

1. Introduction and overview of U.S. and Canadian Federalism -- Introduction -- Constitutional space defined -- Overview of U.S. and Canadian Federalism -- Origins of U.S. and Canadian Federalism -- Formation of the U.S. and Canadian federations -- Evolution of the U.S. and Canadian federations -- Conclusions on the origins, formation, and evolution of the U.S. and Canadian federal systems -- 2. Comparative federalism literature review -- Defining federalism/federation -- Federal vs. national governments -- Distinguishing between federation and confederation -- Origins of federations -- Motivations for forming federal systems -- Why federalism? -- Characteristics of federal systems -- Federalism, ethnic nationalism, and minority rights -- Symmetry vs. asymmetry in federations -- Distribution of power in federal systems -- Representation in federal systems -- Constitutional supremacy in federations -- The question of secession -- Suggestions for further research -- 3. Same-sex marriage and constitutional space -- Same-sex marriage in Canada -- Constitutional authority over marriage in Canada -- Provincial responses to demands for legalization of same-sex marriage -- The notwithstanding clause as a mechanism of provincial constitutional space -- Same-sex marriage in the United States -- The Romer decision and state responses -- Same-sex marriage and constitutional space in California -- Conclusions on the use of constitutional space in relation to conflicts over rights issues in Canada and the United States -- 4. State and provincial constitutional space in resource management -- Land ownership and resource management -- State vs. provincial constitutional arrangements -- Constitutional space and unwritten sub-national constitutions -- Constitutional space and written sub-national constitutions -- Provincial resource management in Canada -- The national energy program -- Impact of the resource amendment -- State resource management in the United States -- Use of the commerce clause to limit state constitutional space in the area of resource management -- State utilization of constitutional space in resource management -- Conclusions on resource management and the use of constitutional space in the United States and Canada -- 5. Conclusion -- Sub-national constitutional space and rights -- Sub-national constitutional space and resource management -- Implications for Alaska -- References.

Date

2009-05

Type

Thesis

Collections

Arctic and Northern Studies