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Is Federalism an Alternative to Secession?

January 1998

In book: Theories of Secession (pp.111-150)
Publisher: Routledge
Editors: Percy Lehning

Authors:

Will Kymlicka

Queen's University

Content uploaded by Will Kymlicka

Content may be subject to copyright.

Is federalism a viable alternative to

secession?

Will Kymlicka

Around the world, multi-ethnic states are in trouble. Many have proven unable

to create or sustain any sense of solidarity across ethnic lines. The members of

one ethnic group are indifferent to the rights and interests of the members of

other groups, and are unwilling to make sacrifices for them. Moreover, they

have no trust that any sacrifice they might make will be reciprocated. Recent

events in Eastern Europe and the former Soviet Union show that where this sort

of solidarity and trust is lacking, demands for secession are likely to arise.

Some commentators have argued that secession is indeed the most

appropriate response to the crisis of multi-ethnic states. On this view, the desire

of minority groups to form a separate state is often morally legitimate, and it is

unjust to force them to remain within a larger state against their will.

International law should therefore define the conditions under which a group

has the right of secession, and the procedures by which that right can be

exercised.1

Critics of this approach argue that recognising a right of secession, either at

the level of normative political theory or international law, would encourage

more secessionist movements, and thereby increase the risk of political

instability and violence around the world. On this view, secession often leads to

civil war, and may start a chain reaction in which minorities within the seceding

unit seek to secede in turn. Moreover, even if actual secession never occurs, the

very threat of secession is destabilising, enabling groups to engage in a politics

of threats and blackmail.2

I will not be directly addressing the question of whether groups have a moral

or legal right to secede. Focusing exclusively on this question may blind us to

the really significant fact of our current situation—namely, that so many people

want to secede, or are at least prepared to consider it. It is a striking (and

distressing) fact that so many groups in the world today feel that their interests

cannot be satisfied except by forming a state of their own.

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Nor is this problem confined to the Second and Third Worlds. Various multi-

ethnic democracies in the West whose long-term stability used to be taken for

granted now seem rather more precarious. Consider recent events in Belgium

or Canada. Even though they live in prosperous liberal states, with firm

guarantees of their basic civil and political rights, the Flemish and Québécois

may be moving down the path to independence. The threat of secession has

arisen in both capitalist and Communist countries, in both democracies and

military dictatorships, in both prosperous and impoverished countries.

The prevalence of secessionist movements suggests that contemporary states

have not developed effective means for accommodating ethnocultural diversity.

Whether or not we recognise a right to secede, the fact is that secession will

remain an ever-present threat in many countries unless we learn to

accommodate ethnocultural diversity. As long as minority groups feel that their

interests cannot be accommodated within existing states, they will contemplate

secession.

In this article, therefore, I want to focus on one of the most commonly cited

mechanisms for accommodating ethnocultural pluralism—namely, federalism.

Many commentators argue that federalism provides a viable alternative to

secession, since it is uniquely able to accommodate ethnocultural diversity.

Federalism, it is said, respects the desire of groups to remain autonomous, and

to retain their cultural distinctiveness, while nonetheless acknowledging the fact

that these groups are not self-contained and isolated, but rather are increasingly

and inextricably bound to each other in relations of economic and political

interdependence. Moreover, since federalism is a notoriously flexible system, it

can accommodate the fact that different groups desire different levels or forms

of self-government.3

My aim in this article is to evaluate this claim. I will challenge this optimistic

picture of the value of federalism in accommodating ethnocultural pluralism. For

one thing, federalism is simply not relevant for many types of ethnocultural

pluralism. Moreover, while there are some circumstances where federalism is

relevant, these very same circumstances make it likely that federalism will

simply be a stepping-stone to either secession or a much looser form of

confederation. In general, it seems to me unlikely that federalism can provide an

enduring solution to the challenges of ethnocultural pluralism. It may restrain

these challenges for a period of time, but federal systems which are designed to

accommodate self-governing ethnocultural groups are likely to be plagued by

deadlock and instability.

This isn’t to say that federalism should be rejected as a tool for

accommodating ethnocultural pluralism. On the contrary, federalism often

provides the best hope for keeping certain countries together. My point, rather,

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is that, where federalism is needed to keep a country together, the odds that the

country will remain together over the long-term are not great. Federalism may

be the best available response to ethnocultural pluralism, but the best may not be

good enough.

Of course, many federal systems were not designed as a response to

ethnocultural pluralism—e.g. those of the United States or Australia. In these

federal systems, the federal units do not correspond in any way with distinct

ethnocultural groups who desire to retain their self-government and cultural

distinctiveness. These sorts of federal systems can be quite stable. I will discuss

the American model of federalism below, but my focus in this article is on

countries which have adopted federalism in order to accommodate ethnocultural

pluralism.

In this article, then, I will first distinguish two forms of cultural pluralism—

which I call ‘polyethnic’ and ‘multinational’. I will then explore whether

federalism is an appropriate response to these forms of cultural pluralism. I will

argue that federalism is largely irrelevant to the accommodation of

polyethnicity, but is potentially relevant to the accommodation of multinational

pluralism (see p. 119). Whether federalism is in fact appropriate for multination

states depends on many factors—in particular, how the boundaries of federal

subunits are drawn, and how powers are distributed between different levels of

government. Contrary to popular conceptions, I will argue that federalism often

lacks the flexibility to resolve these issues in a satisfactory way (see p. 127).

Finally, I will argue that even where federalism has been designed in such a way

as to accommodate ethnocultural groups, it may not be a stable solution, but

rather may simply provide a stepping-stone to secession (see p. 138).

TWO FORMS OF ETHNOCULTURAL PLURALISM

It is a commonplace to say that modern societies are increasingly

‘multicultural’. But the term ‘multicultural’ covers many different forms of

cultural pluralism, each of which raises its own challenges. I will distinguish two

broad patterns of ethnic diversity—which I will call ‘multinational’ and

‘polyethnic’—before considering the relevance of federalism to them.

One source of cultural diversity is the coexistence within a given state of

more than one nation, where ‘nation’ means a historical community, more or

less institutionally complete, occupying a given territory or homeland, sharing a

distinct language and culture.4 A ‘nation’ in this sociological sense is closely

related to the idea of a ‘people’ or a ‘culture’—indeed, these concepts are often

defined in terms of each other. A country which contains more than one nation

is, therefore, not a nation-state but a multination state, and the smaller cultures

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form ‘national minorities’. The incorporation of different nations into a single

state may be involuntary—as occurs when one cultural community is invaded

and conquered by another, or is ceded from one imperial power to another, or

when its homeland is overrun by colonising settlers. But the formation of a

multination state may also arise voluntarily, when different cultures agree to

form a federation for their mutual benefit.

Many Western democracies are multinational. For example, there are a

number of national minorities in the United States, including the American

Indians, Alaskan Eskimos, Puerto Ricans, the descendants of Mexicans (Chicanos)

living in the Southwest when the United States annexed Texas, New Mexico

and California after the Mexican War of 1846–8, native Hawaiians, the

Chamoros of Guam, and various other Pacific Islanders. These groups were all

involuntarily incorporated into the United States, through conquest,

colonisation or imperial cession. Had a different balance of power existed, these

groups might have retained or established their own sovereign governments.

And talk of independence occasionally surfaces in Puerto Rico or the larger

Indian tribes. However, the historical preference of these groups has not been to

leave the United States, but to seek autonomy within it.

As they were incorporated, most of these groups acquired a special political

status. For example, Indian tribes are recognised as ‘domestic dependent

nations’ with their own governments, courts and treaty rights; Puerto Rico is a

‘Commonwealth’, and Guam is a ‘protectorate’. Each of these peoples is

federated to the American polity with special powers of self-government, as

well as group-specific rights regarding language and land use. In short, national

minorities in the United States have a range of rights intended to reflect and

protect their status as distinct cultural communities, and they have fought to

retain and expand these rights.5

Most of these groups are relatively small and geographically isolated.

Together, they constitute only a fraction of the overall American population. As

a result, these groups have been marginal to the self-identity of Americans—and

indeed the very existence of national minorities, and their self-government

rights, is often ignored by American politicians and theorists.

In other countries the existence of national minorities is more obvious.

Canada’s historical development has involved the federation of three distinct

national groups (English, French and Aboriginals).6 The original incorporation of

the Québécois and Aboriginal communities into the Canadian political

community was involuntary. Indian homelands were overrun by French

settlers, who were then conquered by the English. While the possibility of

secession is very real for the Québécois, the historical preference of these groups

—as with the national minorities in the United States—has not been to leave

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the federation, but to renegotiate the terms of federation, so as to increase their

autonomy within it.

Many other Western democracies are also multinational, either because they

have forcibly incorporated indigenous populations (e.g. Finland; New Zealand),

or because they were formed by the more or less voluntary union of two or

more European cultures (e.g. Belgium and Switzerland). In fact, many

countries throughout the world are multinational, in the sense that their

boundaries were drawn to include the territory occupied by pre-existing, and

often previously self-governing, cultures. This is true of most countries

throughout the former Communist bloc and the Third World.7

The second source of cultural pluralism is immigration. A country will

exhibit cultural pluralism if it accepts large numbers of individuals and families

from other cultures as immigrants and allows them to maintain some of their

ethnic particularity. This has always been a vital part of life in Australia, Canada

and the United States, which have the three highest per capita rates of

immigration in the world. Indeed, well over half of all legal immigration in the

world goes into one of these three countries.

Prior to the 1960s immigrants to these countries were expected to shed their

distinctive heritage and assimilate to existing cultural norms. This is known as

the Anglo-conformity’ model of immigration. Indeed, some groups were denied

entry if they were seen as unassimilable (e.g. restrictions on Chinese

immigration in Canada and the United States, the ‘white-only’ immigration

policy in Australia). Assimilation was seen as essential for political stability, and

was further rationalised through ethnocentric denigration of other cultures.

This shared commitment to Anglo-conformity is obscured by the popular but

misleading contrast between the American ‘melting-pot’ and the Canadian

‘ethnic mosaic’. While ‘ethnic mosaic’ implies respect for the integrity of

immigrant cultures, in practice it simply meant that immigrants to Canada had a

choice of two dominant cultures to assimilate to. As Porter puts it, the ‘uneasy

tolerance which French and English were to show towards each other was not

extended to foreigners who resisted assimilation or were believed to be

unassimilable’.8

However, beginning in the 1970s, under pressure from immigrant groups,

all three countries rejected the assimilationist model and adopted a more

tolerant and pluralistic policy which allows, and indeed encourages, immigrants

to maintain various aspects of their ethnic heritage. It is now widely (though far

from unanimously) accepted that immigrants should be free to maintain some of

their old customs regarding food, dress, religion and recreation, and to associate

with each other to maintain these practices. This is no longer seen as unpatriotic

or ‘un-American’.

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But it is important to distinguish this sort of cultural diversity from that of

national minorities. Immigrant groups are not ‘nations’ and do not occupy

homelands. Their distinctiveness is manifested primarily in their family lives and

in voluntary associations, and is not inconsistent with their institutional

integration. They still participate within the public institutions of the dominant

culture(s) and speak the dominant language(s). For example, immigrants (except

for the elderly) must learn English to acquire citizenship in Australia and the

United States, and learning English is a mandatory part of children’s education.

In Canada, they must learn either of the two official languages (French or

English).

The commitment to ensuring a common language has been a constant feature

of the history of immigration policy. Indeed, as Gerald Johnson said of the

United States, ‘It is one of history’s little ironies that no polyglot empire of the

old world has dared to be so ruthless in imposing a single language upon its

whole population as was the liberal republic “dedicated to the proposition that

all men are created equal”.’9 The rejection of Anglo-conformity has not meant a

slackening in this commitment to ensuring that immigrants become

Anglophones, which is seen as essential if they are to be included in the

mainstream of economic, academic and political life of the country.

So, while immigrant groups have increasingly asserted their right to express

their ethnic particularity, they typically wish to do so within the public

institutions of the English-speaking (or in Canada French-speaking) society. In

rejecting assimilation, they are not asking to set up a parallel society, as is

typically demanded by national minorities. The United States and Australia,

therefore, have a number of ‘ethnic groups’ as loosely aggregated subcultures

within the larger English-speaking society, and so exhibit what I will call

‘polyethnicity’. Similarly, in Canada there are ethnic subcultures within both

the English- and French-speaking societies.

It is possible, in theory, for immigrants to become national minorities, if they

settle together and acquire self-governing powers. After all, this is what

happened with English colonists throughout the British Empire, Spanish

colonists in Puerto Rico, and French colonists in Quebec. These colonists did

not see themselves as ‘immigrants’, since they had no expectation of integrating

into another culture, but rather aimed to reproduce their original society in a

new land. It is an essential feature of colonisation, as distinct from individual

emigration, that it aims to create an institutionally complete society, rather than

integrating into an existing one. It would, in principle, be possible to allow or

encourage immigrants today to view themselves as colonists, if they had

extensive government support in terms of settlement, language rights and the

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creation of new political units. But immigrants have not asked for or received

such support.

Many people believe that this ‘polyethnic’ model no longer applies to

Hispanic immigrants to the United States. These immigrants are said to be

uninterested in learning English or in integrating into the Anglophone society.

This is a mistaken perception, which arises because people treat Hispanics as a

single category, and so confuse the demands of Spanish-speaking national

minorities (Puerto Ricans and Chicanos) with those of Spanish-speaking

immigrants recently arrived from Latin America. If we look at Hispanic

immigrants who come to the US with the intention to stay and become citizens,

the evidence suggests that they, as much as any other immigrants, are

committed to learning English and participating in the mainstream society.

Indeed, among Latino immigrants ‘assimilation to the English group occurs

more rapidly now than it did one hundred years ago’.10 (Obviously, this doesn’t

apply to those who don’t expect to stay—e.g. Cuban refugees in the 1960s, and

illegal Mexican migrant workers today.)

Immigration is not only a ‘New World’ phenomenon. Many other countries

also accept immigrants, although not on the same scale as the United States,

Canada and Australia. Since the Second World War Britain and France have

accepted immigrants from their former colonies. Other countries which accept

few immigrants nonetheless accept refugees from throughout the world (e.g.

Sweden). In yet other countries ‘guest-workers’ who were originally seen as

only temporary residents have become de facto immigrants. For example,

Turkish guest-workers in Germany have become permanent residents,

with their families, and Germany is often the only home known to their children

(and now grandchildren). All these countries are exhibiting increasing

‘polyethnicity’.

Obviously, a single country may be both multinational (as a result of the

colonising, conquest or confederation of national communities) and polyethnic

(as a result of individual and familial immigration). Indeed all of these patterns

are present in Canada—the Indians were overrun by French settlers, the French

were conquered by the English, although the current relationship between the

two can be seen as a voluntary federation, and both the English and French have

accepted immigrants who are allowed to maintain their ethnic identity. So

Canada is both multinational and polyethnic, as is the United States.

Those labels are less popular than the term ‘multicultural’. But that term can

be confusing, precisely because it is ambiguous between multinational and

polyethnic. This ambiguity has led to unwarranted criticisms of the Canadian

‘multiculturalism’ policy, which is the term the government uses for its

post-1970 policy of promoting polyethnicity rather than assimilation for

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immigrants. Some French-Canadians have opposed the ‘multiculturalism’ policy

because they think it reduces their claims of nationhood to the level of

immigrant ethnicity.11 Other people had the opposite fear that the policy was

intended to treat immigrant groups as nations, and hence to support the

development of institutionally complete cultures alongside the French and

English. In fact, neither fear was justified, since ‘multiculturalism’ is a policy of

supporting polyethnicity within the national institutions of the English and

French cultures. Since ‘multicultural’ invites this sort of confusion, I will use

the terms ‘multinational’ and ‘polyethnic’ to refer to the two main forms of

cultural pluralism.

It is important to note that ‘nations’, whether they be the majority national

group or a national minority, are not defined by race or descent. Due to high

rates of immigration for over 150 ye ars, Anglophone Americans or Canadians who

are of solely Anglo-Saxon descent are a (constantly shrinking) minority.

Similarly, national minorities are increasingly multi-ethnic and multiracial. For

example, while the level of immigration into French Canada was low for many

years, it is now almost as high as immigration into English Canada or the United

States, and Quebec actively seeks Francophone immigrants from West Africa

and the Caribbean. There have also been high rates of intermarriage between

the indigenous peoples of North America and the English, French and Spanish

populations. As a result, all of these national minorities are racially and

ethnically mixed. The number of French-Canadians who are of solely Gallic

descent, or American Indians who are of solely Indian descent, is also constantly

shrinking, and will ultimately become a minority in each case. In talking about

national minorities, therefore, I am not talking about racial or descent groups

but about cultural groups.12

FEDERALISM AND THE ACCOMMODATION OF

ETHNOCULTURAL GROUPS

Immigration and the incorporation of national minorities are the two most

common sources of ethnocultural diversity in modern states. Most (though not

all) ethnocultural groups can be located within one or other of these broad

categories.13 Virtually all liberal democracies are either multinational or

polyethnic, or both. The ‘challenge of multiculturalism’ is to accommodate

these national and ethnic differences in a stable and morally defensible way. In

this section, I will discuss whether federalism provides a feasible or desirable

mechanism for responding to the demands of national minorities and ethnic

groups.

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There is no universally accepted definition of ‘federalism’. For the purposes

of this article, I take federalism to refer to a political system which includes a

constitutionally entrenched division of powers between a central government

and two or more subunits (provinces/ Länder/states/cantons), defined on a

territorial basis, such that each level of government has sovereign authority over

certain issues. This distinguishes federalism from both (a) administrative

decentralisation, where a central government establishes basic policy in all

areas, but then devolves the power to administer these policies to lower levels of

government, typically regional or municipal governments; and (b)

confederation, where two or more sovereign countries agree to co-ordinate

economic or military policy, and so each devolves the power to administer these

policies to a supranational body composed of delegates of each country.14

It is possible to combine elements from these different models, and some

political systems may be difficult to categorise. All of these systems involve power-

sharing, but the path by which these powers come to be shared differs. In both

administrative decentralisation and confederation the central government within

each country is assumed to possess complete decision-making authority over all

areas of policy; it then chooses to devolve some of this authority upwards or

downwards on the basis of its perceived national interest. But this devolution is

voluntary and revocable—it retains ultimate sovereignty over these areas of

policy, and so it retains the right to unilaterally reclaim the powers it has

devolved. By contrast, in a federal system both levels of government have

certain sovereign powers as a matter of legal right, not simply on a delegated

and revocable basis. Both the central government and the federal subunits

possess sovereign authority over certain policy areas, and it is unconstitutional

for one level of government to intrude on the jurisdiction of the other. The

central government cannot ‘reclaim’ the powers possessed by the federal

subunits, because those powers never belonged to the central government.

Conversely, the subunits cannot reclaim the powers possessed by the central

government, because those powers never belonged to the subunits. In short,

unlike administrative decentralisation and confederation, both levels of

government in a federal system have a constitutionally protected existence, and

do not just exist on the sufferance of some other body.

Immigrant groups

As a general rule, federalism is not relevant to immigrant groups. This is partly

because immigrant groups are rarely territorially concentrated, and hence it

would be difficult, if not impossible, to draw federal boundaries in such a way

that these groups form a majority within a federal subunit. In principle, this

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obstacle could be overcome either by encouraging territorial concentration or

by adopting a non-territorial form of self-rule, such as the ‘millet system’ of the

Ottoman Empire, or the Cultural Councils in pre-war Estonia.15 But the fact is

that immigrant groups within the major immigrant countries historically have

not sought the sort of institutional separateness and political self-government

which federalism provides. Italian-Americans or Japanese-Canadians do not seek

to form separate and self-governing societies based on their mother tongue,

alongside the mainstream Anglophone society. They seek to integrate within the

mainstream Anglophone society.

To be sure, many immigrant groups—particularly since the ‘ethnic revival’

in the 1970s—have demanded greater accommodation of their ethnocultural

differences. For example, there have been demands for: recognition of Jewish

and Muslim religious holidays in school schedules; exemptions from school or

government dress-codes so that Muslim girls can wear headscarves and Sikh and

Jewish men can wear turbans or yarmulkas; greater recognition of the role of

ethnic groups in school history textbooks; and proportional representation of

ethnic groups in the police, judiciary or legislature. But none of these demands

involves the desire to establish a separate and self-governing society alongside the

mainstream society. On the contrary, they aim to reform mainstream

institutions so as to make immigrant groups feel more at home within them.

These measures—which I elsewhere call ‘polyethnic rights’—are consistent

with, and indeed often promote, the integration of immigrants into the public

institutions of the mainstream society, including its political structures.16

I should emphasise that I am speaking here of immigrant groups within those

liberal democratic countries where there is a tradition of welcoming

immigrants, and where it is easy for immigrants to become full citizens

regardless of their race, religion or ethnic origin. Under these circumstances,

immigrant groups have not demanded the sort of group self-government

provided by federalism. Of course, in many parts of the world—including some

Western democracies—immigrants are much less welcome, and it is far more

difficult for them to acquire equal citizenship. Where immigrants are subject to

severe prejudice and legal discrimination—and hence where full equality within

the mainstream society is unachievable—it is more likely that immigrants will

seek to create a separate and self-governing society, alongside the mainstream

society. For example, if the German government persists in making it difficult

for long-term Turkish residents (and their children and grandchildren) to gain

citizenship, one would expect Turks to press for greater powers of self-

government. Perhaps they would press for some quasi-federal or consociational

form of devolution, so that they can create and perpetuate a separate and self-

governing society alongside the German society to which they are denied entry.

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But this is not the preference of the Turks, whose main goal, like that of

immigrants in other liberal democracies, is to become full and equal participants

in German society. And, while I cannot argue the point here, I believe that any

plausible account of liberal justice will insist that long-term immigrants should

be able to acquire citizenship.17 In short, the historical record suggests that

quasi-federal forms of self-government will only be sought by immigrant groups

within liberal democracies if they face unjust barriers to their full integration

and participation in the mainstream society.

National minorities

The situation of national minorities is very different. In most multination states,

the component nations are inclined to demand some form of political autonomy

or territorial jurisdiction, so as to ensure the full and free development of their

cultures and to promote the interests of their people. They demand certain

powers of self-government which they say were not relinquished by their (often

involuntary) incorporation into a larger state. At the extreme, nations may wish

to secede if they think their self-determination is impossible within the larger

state.

One possible mechanism for recognising claims to self-government is

federalism. Where national minorities are regionally concentrated, the

boundaries of federal subunits can be drawn so that the national minority forms

a majority in one of the subunits. Under these circumstances, federalism can

provide extensive self-government for a national minority, guaranteeing its

ability to make decisions in certain areas without being outvoted by the larger

society.

For example, under the federal division of powers in Canada the province of

Quebec (which is 80 per cent Francophone) has extensive jurisdiction over

issues that are crucial to the survival of the Francophone society, including

control over education, language and culture, as well as significant input into

immigration policy. The other nine provinces also have these powers, but the

major impetus behind the existing division of powers, and indeed behind the

entire federal system, is the need to accommodate the Québécois. At the time

when Canada was created, in 1867, most English-Canadian leaders were in

favour of a unitary state, like England, and agreed to a federal system primarily

to accommodate French-Canadians. Had Quebec not been guaranteed these

substantial powers—and hence protected from the possibility of being outvoted

on key issues by the larger Anglophone population—it is certain that Quebec

either would not have joined Canada in 1867 or would have seceded sometime

thereafter.

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Historically, the most prominent examples of federalism being used in this

way to accommodate national minorities are Canada and Switzerland. The

apparent stability and prosperity of these countries has led other multination

countries to adopt federal systems in the post-war period (e.g. Yugoslavia) or

upon decolonisation (e.g. India, Malaysia, Nigeria). Even though many of these

federations are facing serious difficulties, we are currently witnessing yet

another burst of interest in federalism in multination countries, with some

countries in the process of adopting federal arrangements (Belgium, Spain), and

others debating whether it would provide a solution to their ethnic conflicts

(e.g. South Africa).18

This widespread interest in federalism reflects a welcome, if belated,

acknowledgement that the desire of national minorities to retain their distinct

cultures should be accommodated, not suppressed. For too long, academic

theorists and political élites assumed that modernisation would inevitably

involve the assimilation of minority nationalities, and the withering away of

their national identity. Central governments around the world have tried to

dissolve the sense amongst national minorities that they constitute distinct

peoples or nations, by eliminating previously self-governing political and

educational institutions, and/or by insisting that the majority language be used

in all public forums. However, it is increasingly recognised that these efforts

were both unjust and ineffective, and that the desire of national minorities to

maintain themselves as culturally distinct and political autonomous societies

must be accommodated.19

Federalism is one of the few mechanisms available for this purpose. Indeed, it

is quite natural that multination countries should adopt federal systems—one

would expect countries which are formed through a federation of peoples to

adopt some form of political federation. But, while the desire to satisfy the

aspirations of national minorities is welcome, we should be aware of the pitfalls

involved. Federalism is no panacea for the stresses and conflicts of multination

states. In the rest of the article I will discuss a number of qualifications regarding

the potential value of federalism in multination states. I will separate my

concerns into three areas. First, the mere fact of federalism is not sufficient for

accommodating national minorities—it all depends on how federal boundaries

are drawn and how powers are shared. Indeed, federalism can be, and has been,

used by majority groups as a tool for disempowering national minorities, by

rigging federal units so as to reduce the power of national minorities. We need

therefore to distinguish genuinely multinational federations, which seek to

accommodate national minorities, from merely territorial federations, which do

not. Second, federalism is not as flexible as its proponents often claim. Where

the subunits of a federal system vary in their territory, population and their

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desire for autonomy, as is often the case, developing an ‘asymmetric’ form of

federalism has proven to be very complicated (see p. 127). Finally, even where

federalism is successfully working to accommodate the aspirations of national

minorities, its very success may simply lead minorities to seek even greater

autonomy, through secession or confederation (see p. 138).

MULTINATIONAL VS. TERRITORIAL

FEDERALISM

While federalism is increasingly being considered as a solution to the problems

of multination states, it is important to note that many federal systems arose for

reasons unrelated to ethnonational diversity.20 In fact, the most famous and

widely studied federation—the American system—makes no effort to respond

to the aspiration of national minorities for self-government.

Anglo-Saxon settlers dominated all of the original thirteen colonies which

formed the United States. As John Jay put it in The Federalist Papers, ‘Providence

has been pleased to give this one connected country to one united people—a

people descended from the same ancestors, speaking the same language,

professing the same religion, attached to the same principles of government,

very similar in their manners and customs.’ Jay was exa ggerating the ethnocultural

homogeneity of the colonial population—most obviously in ignoring blacks21—

but it was true that none of the thirteen colonies were controlled by a national

minority, and that the original division of powers within the federal system was

not defined with a view to the accommodation of ethnocultural divisions.

The status of national minorities became more of an issue as the American

government began its territorial expansion to the south and west, and eventually

into the Pacific. At each step of this expansion the American government was

incorporating the homelands of already settled, ethnoculturally distinct peoples

—including American Indian tribes, Chicanos, Alaskan Eskimos, native

Hawaiians, Puerto Ricans, and Chamoros. And at each step, the question arose

whether the American system of federalism should be used to accommodate the

desire of these groups for self-government.

It would have been quite possible in the nineteenth century to create states

dominated by the Navaho, for example, or by Chicanos, Puerto Ricans and

native Hawaiians. At the time these groups were incorporated into the United

States they formed majorities in their homelands. However, a deliberate

decision was made not to use federalism to accommodate the self-government

rights of national minorities. Instead, it was decided that no territory would be

accepted as a state unless these national groups were outnumbered within that

state. In some cases this was achieved by drawing boundaries so that Indian

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tribes or Hispanic groups were outnumbered (Florida). In other cases, it was

achieved by delaying statehood until Anglophone settlers swamped the older

inhabitants (e.g. Hawaii; the Southwest).22 As a result, none of the fifty states

can be seen as ensuring self-government for a national minority in the way that

Quebec ensures self-government for the Québécois.

Indeed, far from helping national minorities, there is reason to believe that

American federalism has made them worse off. Throughout most of American

history Chicanos, American Indian tribes and native Hawaiians have received

better treatment from the federal government than from state governments.

State governments, controlled by colonising settlers, have often seen national

minorities as an obstacle to greater settlement and resource development, and

so have pushed to strip minorities of their traditional political institutions,

undermine their treaty rights, and dispossess them of their historic homelands.

While the federal government has, of course, been complicit in much of the

mistreatment, it has often at least attempted to prevent the most severe abuses.

We can see the same dynamic in Brazil, where the federal government is

fighting to protect the rights of Indians in Amazonia against the predations of

local state governments.

In short, American-style territorial federalism, far from serving to

accommodate national minorities, has made things worse. This should be no

surprise, since the people who devised American federalism had no interest in

accommodating these groups. In deciding how to arrange their federal system—

from the drawing of boundaries, to the division of powers and the role of the

judiciary—their aim was to consolidate and then expand a new country and to

protect the equal rights of individuals within a common national community, not

to recognise the rights of national minorities to self-government.23 As I discuss

below, insofar as national minorities in the US have achieved self-government,

it has been outside of—and, to some extent, in spite of—the federal system,

through non-federal units such as the ‘commonwealth’ of Puerto Rico, the

‘protectorate’ of Guam or the ‘domestic dependent nations’ status of American

Indian tribes.

Since American federalism was not intended to accommodate ethnocultural

groups, why then was it adopted? There are several reasons why the original

colonists, who shared a common language and ethnicity, nonetheless adopted

federalism—reasons which are famously explored in The Federalist Papers. Above

all, federalism was seen as a way to prevent a liberal democracy from

degenerating into tyranny. As Madison put it, federalism helped to prevent

‘factions’—particularly an economic class or business interest—from imposing

its will through legislation to the detriment of ‘the rights of other citizens, or to

the permanent and aggregate interests of the community’. Federalism makes it

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more difficult for those who ‘have a common motive to invade the rights of

other citizens’ to ‘act in unison with each other’. The ‘influence of factious

leaders may kindle a flame within their particular States, but will be unable to

spread a general conflagration through the other States’.24 Conversely, the

existence of strong, independent state governments provided a bulwark for

individual liberties against any possible encroachment by a federal government

which is captured by sinister factions.

Federalism was just one of several mechanisms for reducing the chance of

tyranny. An equal emphasis was placed on ensuring a separation of powers

within each level of government—e.g. separating the executive, judicial and

legislative powers at both the state and federal levels. This, too, helped

minimise the amount of power that any particular faction could command, as

did the later adoption of a Bill of Rights. The adoption of federalism in the

United States should be seen in the context of this pervasive belief that the

power of government must be limited and divided so as to minimise the threat

to individual rights.

It is important to note that Madison was not thinking of ethnocultural groups

when talking about ‘factions’. Rather, he was concerned with the sorts of

conflicts of interest which arise amongst ‘a people descended from the same

ancestors, speaking the same language’. These include, above all else, economic

divisions between rich and poor, or between agricultural, mercantile and

industrial interests. Madison’s preoccupations are reflected in his list of the

‘improper or wicked projects’ which federalism will help prevent—namely, ‘A

rage for paper money, for an abolition of debts, for an equal division of

property’.25

The subsequent history of the United States suggests that federalism offers

other, more positive, benefits. For example, it has helped provide room for

policy experimentation and innovation. Faced with new issues and problems,

each state adopted differing policies, and those policies which proved most

successful were then adopted more widely. Moreover, as the United States

expanded westward and incorporated vast expanses of territory with very

different natural resources and forms of economic development, it became

increasingly difficult to conceive how a single, centralised unitary government

would be workable. Some form of territorial devolution was clearly necessary,

and the system of federalism adopted by the original thirteen colonies on the

Atlantic coast served this purpose very well.

So there are many reasons, unrelated to ethnocultural diversity, why a

country would adopt federalism. Indeed, any liberal democracy which contains

a large and diverse territory will surely be pushed in the direction of adopting

some form of federalism, regardless of its ethnocultural composition. The

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virtues of federalism for large-scale democracies are manifested not only in the

United States but also in Australia, Brazil and Germany. In each of these cases,

federalism is firmly entrenched and widely endorsed, even though none of the

federal units is intended to enable ethnocultural groups to be self-governing.

In some countries, then, federalism is adopted, not because it accommodates

the desire of national minorities for self-government, but rather because it

provides a means by which a single national community can divide and diffuse

power. Following Philip Resnick, I will call this ‘territorial federalism’, as

distinct from ‘multinational federalism’.26

My concern in this article is with multinational federations. Most scholarly

discussions of federalism, however, have focused on territorial federalism. This

is partly due to the historical influence of American federalism. Perhaps because

the United States was the first truly democratic federation, American federalism

has become the model, not just of territorial federalism but of federalism tout

court, or at least of ‘mature’ or ‘classic’ federalism. Similarly, The Federalist

Papers are often taken to be the paradigm expression of ‘the federalist principle’.

Other federal systems are then categorised on the basis of how closely they

conform to the basic attributes of the American system. Thus, for example,

Australia is typically seen as a more truly federal system than Canada or India,

since the latter deviate significantly from the American model.

Yet if our concern is with multinational federalism, then we cannot use the

United States as our model. The American federal system, and The Federalist

Papers, offer us no guidance on how to accommodate ethnocultural groups. On

the contrary, as I noted earlier, federal subunits were deliberately manipulated

to ensure that national minorities could not achieve self-government through

federalism. More generally, territorial federalism, in and of itself, is no

guarantee that ethnocultural groups will be accommodated. Whether the

allocation of powers to territorial subunits promotes the interests of national

minorities depends on how the boundaries of those subunits are drawn, and on

which powers are allocated to which level of government. If these decisions

about boundaries and powers are not made with the conscious intention of

empowering national minorities, then federalism may well serve to worsen the

position of national minorities, as has occurred in the United States, Brazil and

other territorial federalisms.

HOW FLEXIBLE IS MULTINATIONAL

FEDERALISM?

For a federal system to qualify as genuinely multinational, decisions about

boundaries and powers must consciously reflect the needs and aspirations of

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minority groups.27 But to what extent can the boundaries and powers of federal

units be defined so as to accommodate these groups? As I noted earlier, many

theorists argue that federalism is appropriate precisely because it has great

flexibility in answering these questions. Even a cursory survey of federal

systems shows that there is great variety in how boundaries are drawn and

powers distributed. There seem to be few, if any, a priori rules regarding the

size, shape or powers of federal subunits.

I believe, however, that federalism is less flexible than many people suppose.

There are significant limitations on how powers can be divided, and on how

boundaries can be drawn. I will discuss these two problems in turn.

Dividing powers in a multinational federation

Let us assume that boundaries can be drawn in such a way that national

minorities form a majority in their federal subunit, as with Quebec or

Catalonia. This provides a starting-point for self-government, but whether the

resulting federal system is satisfactory to national minorities will depend on how

powers are distributed between the federal and provincial levels. The historical

record suggests that this issue may lead to intractable conflicts, because different

units may seek different powers, and it is difficult for federalism to

accommodate these divergent aspirations.

This is particularly true if only one or two of the federal units are vehicles for

self-governing national minorities, while the rest are simply regional divisions

within the majority national group. This is the case in Canada, for example,

where the province of Quebec secures self-government for the Québécois, but

the nine remaining provinces reflect regional divisions within English Canada. A

similar situation exists in Spain, where the Autonomous Communities of

Catalonia, the Basque Country and Galicia secure self-government for national

minorities, while most of the other fourteen Autonomous Communities, such

as La Mancha or Extremadura, reflect regional divisions within the majority

Spanish national group.28 In both countries, then, some units embody the desire

of national minorities to remain as culturally distinct and politically self-

governing societies (what I will call ‘nationality-based units’), while others

reflect the decision of a single national community to diffuse powers on a

regional basis (what I will call ‘regional-based units’).

It is likely that nationality-based units will seek different and more extensive

powers than regional-based units. As a general rule, we can expect nationality-

based units to seek greater and greater powers, while regional-based units are less

likely do so, and may indeed accept a gradual weakening of their powers. This is

reflected in the way the American and Canadian federal systems have

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developed. It has often been pointed out that the United States, which began as

a strongly decentralised federation, with all residual powers attributed to the

states, has gradually become one of the most centralised; whereas Canada,

which began as a strongly centralised federation, with all residual powers

attributed to the federal government, has gradually become one of the most

decentralised. This is often said to be paradoxical, but it is understandable when

we remember that the United States is a territorial federation, composed

entirely of regional-based units. Because none of the fifty states in the United

States are nationality-based, centralisation has not been seen as a threat to

anyone’s national identity. While many Americans object to centralisation as

inefficient or undemocratic, it is not seen as a threat to the very survival of

anyone’s national group. By contrast, centralisation in Canada is often seen as a

threat to the very survival of the Québécois nation, insofar as it makes French-

Canadians more vulnerable to being outvoted by Anglophones on issues central

to the reproduction of their culture, such as education, language,

telecommunications, and immigration policy.

This difference has had a profound effect on how the US and Canada have

responded to the pressures for centralisation in this century. In both countries,

there have been many occasions—most notably the Depression and the two

World Wars—when there were great pressures to strengthen the federal

government, at least temporarily. In Canada these pressures were

counterbalanced by the unyielding insistence of French-Canadians that the self-

governing powers of Quebec be protected, so that any temporary centralisation

would ultimately be reversed. In the United States, however, there was no

similar countervailing pressure, and the various forces for greater centralisation

have gradually and cumulatively won out.

The fact that regional-based and nationality-based units typically desire

different levels of power is also reflected within both Canada and the United

States. For example, while most Québécois want an even more decentralised

division of powers, most English-Canadians favour retaining a strong central

government.29 Indeed, were it not for Quebec, there is good reason to believe

that Canadian federalism would have succumbed to the same forces of

centralisation which won out in the United States. However, while the regional-

based American states have gradually lost power, we find a very different story

if we look at the quasi-federal units used to accommodate national minorities—

e.g. the Commonwealth of Puerto Rico, Indian tribes, or the Protectorate of

Guam. In these cases of nationality-based units, we see a clear trend toward

greater powers of self-government, in order to sustain their cultural distinct

societies.30

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We find the same pattern throughout Europe as well. For example, Catalonia

and the Basque Country have expressed a desire for greater autonomy than is

sought by other regional-based units in Spain. Corsica seeks greater autonomy

than other regional-based units in France. While many European countries are

engaging in forms of regional decentralisation, particularly if they had previously

been highly centralised states, this process is going much farther in countries

where the resulting units are nationality-based (e.g. Belgium) than where they

are regional-based (e.g. Italy). And of course the most extreme assertion of self-

government—namely, secession—has only been made by nationality-based

units, whether it be in the former Czechoslovakia, Yugoslavia or the Soviet

Union, and not by regional-based units.

In a federal system which contains both regional-based and nationality-based

units, therefore, it seems likely that demands will arise for some form of

asymmetrical federalism—i.e., for a system in which some federal units have

greater self-governing powers than others. Unfortunately, it has proven

extraordinarily difficult to negotiate such an asymmetrical model. There seems

to be great resistance, particularly on the part of majority groups, to accepting

the idea that federal units can differ in their rights and powers. As a result,

national minorities have found it very difficult to secure the rights and

recognition that they seek.

The difficulty in negotiating asymmetry is, in one sense, quite puzzling. If

English-Canadians want a strong federal government, and Québécois want a

strong provincial government, asymmetry would seem to give both groups

what they want. It seems perverse to insist that all subunits have the same

powers, if it means that English-Canadians have to accept a more decentralised

federation than they want, while French-Canadians have to accept a more

centralised federation than they want.

Yet most English-Canadians overwhelmingly reject the idea of ‘special status’

for Quebec. To grant special rights to one province on the grounds that it is

nationality-based, they argue, is somehow to denigrate the other provinces, and

to create two classes of citizens.31 Similar sentiments have been expressed in

Spain about the demand for asymmetrical status by the Basques and Catalans.32

Some commentators—such as Charles Taylor—argue that this simply reflects

confused moral thinking.33 Liberal democracies are deeply committed to

the principle of the moral equality of persons, and equal concern and respect for

their interests. But equality for individual citizens does not require equal

powers for federal units. On the contrary, special status for nati onality-based units

can be seen as promoting this underlying moral equality, since it ensures that

the national identity of minorities receives the same concern and respect as that

of the majority nation. Insofar as English-Canadians view the federal government

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as their ‘national’ government, respecting their national identity requires

upholding a strong federal government; insofar as Québécois view Quebec as

their national government, respecting their national identity requires upholding

a strong provincial government. Accommodating these differing identities

through asymmetrical federalism does not involve any disrespect or invidious

discrimination.34 It is difficult to avoid the conclusion that much of the

opposition to asymmetry amongst the majority national group is rooted in a

latent ethnocentrism—i.e., a refusal to recognise that the minority has a

distinct national identity that is worthy of respect. This fits into the long history

of neglecting or denigrating the desire of national minorities to remain

culturally distinct societies, which I discussed earlier.

Another factor underlying the opposition to asymmetry is the profound

influence of the American model of federalism. As I noted earlier, many people

have supposed that American federalism is the model of federalism tout court,

and that all federalisms should aim to be purely territorial. On this view, any

special accommodations for nationality-based units are seen as merely transient

measures which are not appropriate in a ‘mature’ territorial federalism.

The problem is not simply that regional and nationality-based units happen to

desire different powers. These variations in desired powers reflect an even

deeper difference in the very conception of the nature and aims of political

federation. For national minorities, federalism is, first and foremost, a

federation of peoples, and decisions regarding the powers of federal subunits

should recognise and affirm the equal status of the founding peoples. On this

view, to grant equal powers to regional-based units and nationality-based units

is in fact to deny equality to the minority nation, by reducing its status to that of

a regional division within the majority nation. By contrast, for members of the

national majority, federalism is, first and foremost, a federation of territorial

units, and decisions regarding the division of powers should affirm and reflect

the equality of the constituent units. On this view, to grant unequal powers to

nationality-based units is to treat some of the federated units as less important

than others.

This difference in the conception of federalism can lead to conflicts even

when there is little variation in the actual powers demanded by regional-based

and nationality-based units. For example, some people have proposed a radical

across-the-board decentralisation in Canada, so that all provinces would have

the same powers currently demanded by Quebec. This is intended to avoid the

need to grant ‘special status’ to Quebec. The response by many Quebec

nationalists, however, was that this missed the point. The demand for special

status was a demand not just for this or that power but also for national

recognition. As Resnick puts it, ‘They want to see Quebec recognised as a

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nation, not a mere province; this very symbolic demand cannot be finessed

through some decentralising formula applied to all provinces’.35 Quebec

nationalists want asymmetry, not just to gain this or that additional power, but

also for its own sake, as a symbolic recognition that Quebec alone is a

nationality-based unit within Canada.36

This may seem like a petty concern with symbols rather than the substance of

political power. But we find the same response in other multinational

federations. For example, prior to the breakup of Czechoslovakia some people

proposed a decentralised federation composed of three units with equal powers

—Slovakia and two Czech regions (Moravia and Bohemia). This would enable

Slovak national self-government, while also accommodating Moravia’s historical

status as a distinct region within the Czech nation. However, Slovak nationalists

dismissed this proposal, since ‘it would have meant equivalence between the

Slovak nation and Moravian cultural and historical specificity, thus lessening the

relevance of Slovak nationhood’.37

Or consider the response of Catalan and Basque nationalists to the proposal

to make the same maximal level of autonomy exercised by their nationality-

based units available to all federal units in Spain, including the regional-based units

(i.e. to ‘generalise’ autonomy):

the 1978 Constitution assumed the principle of autonomy because it was

absolutely essential to resolve the claims to self-government made by

Catalonia and the Basque country if indeed a democratic system was to be

installed which aimed not just at the freedom and rights of citizens but

also of peoples. When the attack began via what has been called the

generalisation of autonomies, the politicians tried to forget what was

originally intended.38

We can now see why disputes about the division of powers within a multinational

federalism are so difficult to resolve. The problem is not simply that units differ

in their preferences regarding the extent of autonomy. That problem can often

be resolved by reasonable people of good will. And indeed many English-

Canadians are willing to accept a more decentralised federation than they would

ideally like in order to accommodate Quebec, while many Québécois are

willing to accept a less decentralised federation than they would ideally like in

order to accommodate English Canada. Reasonable people are willing to

compromise, within limits, on the precise powers they seek for their federal

units.

Unfortunately, the problem goes deeper than this. While the majority may

be willing to compromise on the precise degree of decentralisation, they are

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unwilling to compromise on what they take to be a basic principle of federalism

—namely, that all federal units should be equal in their rights and powers.

Conversely, while the national minority may be willing to compromise on its

demands for autonomy, it is not willing to compromise on what it takes to be a

basic principle of federalism—namely, that its status as one of the founding

peoples must be symbolically recognised through some form of asymmetry

between nationality-based and region-based units. As a result, even if both

regional-based and nationality-based units happen to desire a roughly similar set

of powers, serious conflicts are likely to remain. For each side rejects on principle

what the other side views as part of the very nature and purpose of federalism.

For the majority nation, federalism is a compact between equal territorial units,

which therefore precludes asymmetry; for the national minority, federalism is a

compact between peoples, which therefore requires asymmetry between

nationality-based units and regional-based units.

This helps explain why asymmetry has been so difficult to negotiate within

multinational federations. But there are other problems which further reduce the

flexibility of federalism in adopting asymmetry. Let’s assume that the conflicts I

have just been discussing are somehow solved, and there is a widespread

acceptance of the need for some form of asymmetry for nationality-based units.

There remain some practical problems to be solved, particularly regarding the

representation of the nationality-based unit in the federal government. These

problems are, I believe, formidable, and we have very few models around the

world of how to resolve them.

Let’s imagine, then, that an asymmetrical transfer of powers from the federal

government to Quebec occurs, so that the federal government would be passing

laws that would apply to all provinces except Quebec. Under these

circumstances, it seems only fair that Quebecers not have a vote on such

legislation (particularly if they could cast the deciding vote). For example, it

would seem unfair for Quebec’s elected representatives at the federal level to

vote on federal legislation regarding immigration, if the legislation does not

apply to Quebec. In short, insofar as the jurisdiction of the federal government

over a national minority is reduced, compared to other regional-based units,

this seems to entail that the minority group should have reduced influence (at

least on certain issues) at the federal level.

Some national minorities do have this sort of reduced influence at the federal

level. For example, because residents of Puerto Rico have special self-governing

powers which exempt them from certain federal legislation, they have reduced

representation in Washington. They help select presidential candidates in party

primaries, but do not vote in presidential elections. And they have only one

representative in Congress, a ‘commissioner’ who has a voice but no vote,

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except in committees. This reduced representation is seen by some as evidence

that Puerto Rico is ‘colonised’ by the United States. But, while the details of the

existing arrangement are subject to criticism, the existence of reduced

representation can be seen as a corollary of Puerto Rican self-government, and

not just its colonial subjugation. The less a group is governed by the federal

government, the less right it has to representation in that government. An

asymmetry in powers entails an asymmetry in representation.

But how exactly should an asymmetry in the powers of subunits be reflected

in terms of representation at the federal level? If a particular subunit has greater

powers, one would expect its representatives to be fewer in number, and/or

restricted in their voting power. Both of these apply to Puerto Rico. But the

Puerto Rican model has obvious weaknesses. While Puerto Rico has very

limited federal representation, it is still very much subject to Congressional

authority in some areas. It would seem preferable, therefore, to reduce their

influence in a more issue-specific way—for example, by allowing their

Congressional representative to have a full vote on legislation which applies to

Puerto Rico, but no vote on legislation from which Puerto Rico is exempt.

Unfortunately, this is easier said than done. Many pieces of legislation deal with

areas of jurisdiction that Puerto Rico is partly exempt from, and partly subject

to. There is no way to divide up the business of government into such clear-cut

groupings. Moreover, this leaves unanswered the question of how many

representatives a nationality-based unit should have at the federal unit. A strong

asymmetry in powers for federal subunits suggests that there should be a

compensating reduction in the number of representatives, but what is a fair

trade-off here?

This has been a serious stumbling-block in developing a workable model of

asymmetrical federalism in Canada. It is increasingly accepted that a strongly

asymmetrical status for Quebec will require reducing the influence of Quebec’s

elected representatives in the federal legislature. However, there is no available

model which tells us how to do this.39 And of course this problem links up with

the previous problem of differing conceptions of federalism. Since members of

the majority are already inclined to view any form of asymmetry as an unfair

privileging of the minority, they will be keenly sensitive to any evidence that the

minority is exercising undue power at the federal level (e.g. by voting on

legislation from which they are themselves exempt).

Yet we can expect the national minority to resist any serious reduction of

their representation at the federal level. After all, they are already, by definition,

a minority at the federal level, and to reduce their influence even further will

just make the federal government seem more remote, and indeed more of a

threat. It will seem increasingly like an ‘alien’ government. The more Quebec’s

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influence is reduced at the federal level, the more tempting it will be for

Quebecers to decide to simply go it alone, and seek secession. Why stay within

the federation if their influence on federal policy is gradually eroding? The

danger that asymmetry will eventually lead to secession is a serious one, I

believe, since there are other factors pulling in the direction of secession, which

I discuss in the next section.

So there are many reasons why federal systems have difficulty adopting

asymmetrical arrangements. Indeed, these problems are so severe that some

people have claimed that a federal system cannot survive for long if it adopts

asymmetry. This is an overstatement, but there are greater limits on the

flexibility of federalism than many proponents of federalism admit.40

The inability of federalism to accommodate asymmetry is exacerbated by the

fact that the procedure for amending the constitution in a federal system is so

cumbersome. For example, to amend the constitution in the United States

requires the consent of thirty-five states, and two-thirds of the members of

Congress. In Canada, depending on the nature of the proposed change, a

constitutional amendment requires the consent of both federal houses, plus

either seven provinces containing 50 per cent of population, or all ten

provinces. Recent experience with the Equal Rights Amendment in US, or the

Meech Lake and Charlottetown Accords in Canada, suggests that achieving this

level of agreement is very difficult. If implementing asymmetrical federalism

requires amending the powers of federal subunits, or the system of federal

representation, the obstacles are enormous. Whereas a unitary state can

typically amend its constitution by a single majority or super-majority vote,

federalism requires the consent of concurrent majorities—i.e. majorities in the

country as a whole, plus in all of its constituent units. This sets the threshold so

high that even a widely supported proposal for asymmetry may fall short.

Drawing boundaries in a multinational federation

One limitation on federalism’s ability to accommodate national minorities, then,

is that it may be difficult to achieve the desired division of powers. But, in

addition to dividing powers, we must also draw boundaries, and this raises

another limit on the flexibility of multinational federalism. For federalism to

serve as a mechanism for self-government, it must be possible to draw federal

subunits in such a way that the national minority forms a majority within a

particular subunit, as the Québécois do in Quebec. This is simply not possible

for some national minorities, including most indigenous peoples in the United

States or Canada, who are fewer in number, and who have been dispossessed of

much of their historic lands, so that their communities are often dispersed, even

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across state/provincial lines. With few exceptions, indigenous peoples currently

form a small minority within existing federal units, and no redrawing of the

boundaries of these federal subunits would create a state, province or territory

with an indigenous majority.41 It would have been possible to create a state or

province dominated by an Indian tribe in the nineteenth century, but, given the

massive influx of settlers since then, it is now virtually inconceivable.

For most indigenous peoples in the US or Canada, therefore, self-government

can only be achieved outside the federal system. Self-government has been

primarily tied to the system of reserved lands (known as tribal ‘reservations’ in

the United States, and band ‘reserves’ in Canada). Substantial powers are

exercised by the tribal/band councils which govern each reserve. Indian tribes/

bands have been acquiring increasing control over health, education, family law,

policing, criminal justice and resource development. (Or, more accurately, they

have been reacquiring these powers, since, of course, they governed themselves

in all these areas before their involuntary incorporation into the larger Canadian

or American polity). They are becoming, in effect, a kind of ‘federacy’, to use

Daniel Elazar’s term, with a collection of powers that is carved out of both

federal and state/ provincial jurisdictions.42

One could, in principle, define each of these reserved lands as a new state or

province within the federal system. But that is impractical, given that there are

so many separate tribes/bands in the United States and Canada (over six

hundred in Canada alone), and that many of these groups are very small both in

population and territory, and that they are located within existing federal

subunits. Moreover, Indian peoples do not want to be treated as federal

subunits, since the sort of self-government they seek involves a very different

set of powers from that exercised by provinces. They would only accept the

status of a federal subunit if this was a strongly asymmetrical status, which

included powers typically exercised by both the federal and provincial levels.

Furthermore, Indian tribes/bands differ enormously amongst themselves in the

sorts of powers they desire. They seek not only asymmetry, but varying degrees

of asymmetry. Yet, for the reasons I’ve just discussed, it is extremely difficult to

achieve that sort of flexibility within a federal system. Hence Indians have

pursued self-government through a sort of ‘federacy’ relationship that exists

outside the normal federal system.

As the term suggests, a ‘federacy’ has important analogies with federalism—

for example, both involve a territorial division of powers. But because most

Indian tribes now form a minority even within their historic homelands, and so

are territorially located within existing states or provinces, their self-

government occurs outside of, and to some extent in opposition to, the federal

system. Rather than possessing the standard rights and powers held by federal

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subunits, and governing under the same rules which apply to federal subunits,

they instead possess a set of group-specific powers and exemptions which

partially removes them from the federal process by reducing the jurisdiction of

both the federal and state/provincial governments over them. As I noted

earlier, federalism in the United States and Canada, far from empowering Indian

peoples, has in fact simply increased their vulnerability, by making their self-

governance subject to encroachment from both federal and state/provincial

governments. The achievement of Aboriginal self-government through

‘federacy’, therefore, involves protection against the federal system.

The fact that Indians in the United States do not control state governments

has tended to make them more vulnerable, since their self-government powers

do not have the same constitutional protection as states’ rights. They are

therefore more subject to the ‘plenary power’ of Congress, which has often

been exercised to suit the needs and prejudices of the dominant society, not of

the national minority. However, the fact that they lie outside the federal structure

has compensating advantages. In particular, it has provided much greater

flexibility in redefining those powers to suit the needs and interests of the

minority. Whereas there is pressure within federal systems to make all subunits

equal in their powers and federal representation, ‘federacy’ arrangements allow

for greater variations. Moreover, it is much easier to negotiate new self-

government provisions for the Navaho than to amend the powers of individual

states.

The same applies to other national minorities in the United States. For

example, because Puerto Rico is a ‘Commonwealth’ not a state, it has been

easier to amend its self-governing powers and to negotiate an asymmetrical

status in terms of both powers and federal representation. This might have

proved impossible had Puerto Rico been granted statehood when it was

incorporated by the United States in 1898.43

For a variety of reasons, then, federalism may lack the flexibility needed to

accommodate national minorities. It may be impossible for a small national

minority to form a majority in one of the federal subunits. For such groups, self-

government can only be achieved outside the federal system, through some special

non-federal or quasi-federal political status. And, even if the boundaries can be

drawn in such a way that the national minority forms a majority within a federal

subunit, it may be impossible to negotiate a satisfactory division of powers,

particularly if the federation includes both nationality-based and regional-based

subunits.

Therefore, in many cases, the aspirations of national minorities may best be

achieved through political institutions which operate outside the federal system

—as ‘commonwealths’, ‘federacies’, ‘protectorates’ or ‘associated states’—

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rather than by controlling a standard federal subunit. Standard models of

federalism, with their implicit assumptions of equal powers and regional-based

units, and their complex amendment procedures, may not be capable of

responding to the distinctive interests and desires of nationality-based units.

FEDERALISM, SECESSION AND SOCIAL UNITY

So far, I have been discussing limits on the ability of federalism to accommodate

the needs of national minorities. Let’s imagine, however, that these problems

have been overcome. Let’s assume that national minorities are satisfied with the

boundaries of their subunit, that they possess sufficient self-governing powers to

maintain themselves as culturally distinct societies, and that some form of

asymmetry has either been accepted or proven unnecessary. In short, let’s

assume that federalism is working as its proponents envisage to combine shared

rule with respect for ethnocultural differences. There is one further problem

that is worth considering. The very success of federalism in accommodating self-

government may simply encourage national minorities to seek secession. The

more that federalism succeeds in meeting the desire for self-government, the

more it recognises and affirms the sense of national identity amongst the

minority group, and strengthens their political confidence. Where national

minorities become politically mobilised in this way, secession becomes more

likely, even with the best-designed federal institutions.

One way to describe the problem is to say that there is a disjunction between

the legal form of multinational federalism and its underlying political

foundations. Legally speaking, as I noted earlier, federalism views both levels of

government as possessing inherent sovereign authority. This distinguishes it

from a confederation, where sovereign states delegate certain powers to a

supranational body—powers which they can reclaim. In a federal system,

however, the general government has inherent, not just delegated, power to

govern its citizens. Just as the province of Quebec has the inherent authority to

govern all Quebecers—an authority which the federal government did not

delegate and cannot unilaterally revoke—so the federal government of Canada

has the inherent authority to govern all Canadians (including Quebecers), an

authority which the provincial governments did not delegate, and cannot

unilaterally revoke.

This is the legal form of federalism. But political perceptions of it are likely to

be rather different. Multinational federations are often viewed by national

minorities as if they were confederations. National minorities typically view

themselves as distinct ‘peoples’, whose existence predates that of the country

they currently belong to. As separate ‘peoples’, they possess inherent rights of

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self-government.44 While they are currently part of a larger country, this is not

seen as a renunciation of their original right of self-government. Rather it is seen

as a matter of transferring some aspects of their powers of self-government to

the larger polity, on the condition that other powers remain in their own hands.

In countries that are formed from the federation of two or more national

groups, the (morally legitimate) authority of the central government is limited

to the powers which each constituent nation agreed to transfer to it. And these

national groups often see themselves as having the (moral) right to take back these

powers, and withdraw from the federation, if they feel threatened by the larger

community.45

Legally speaking, of course, nationality-based federal units do not have the

right to reclaim the powers exercised by the federal government. Legally, these

powers are inherently vested in the federal government, and the subunits

cannot ‘reclaim’ what was never theirs. But the political perceptions of national

minorities are unlikely to match these legal niceties. For them, the larger

country feels more like a confederation than a federation, in the sense that the

larger country’s existence is seen as morally dependent on the revocable

consent of the constituent national units. As a result, the larger political

community has a more conditional existence than a unitary state or a territorial

federalism.

In short, the basic claim made by national minorities is not simply that the

political community is culturally diverse (as immigrants, for example, typically

claim).46 Instead, the claim is that there is more than one political community,

and that the authority of the larger state cannot be assumed to take precedence

over the authority of the constituent national communities. If democracy is the

rule of ‘the people’, national minorities claim that there is more than one

people, each with the right to rule themselves. Multinational federalism divides

the people into separate ‘peoples’, each with its own historic rights, territories

and powers of self-government, and each, therefore, with its own political

community. They may view their own political community as primary and the

value and authority of the larger federation as derivative.47

The reason why multinational federalisms are likely to be unstable should

now be obvious. The more a federal system is genuinely multinational—that is,

the more it recognises and affirms the demand for self-government—the more

it will strengthen the perception amongst national minorities that the federal

system is de facto a confederal system. That is, the more successful a

multinational federal system is in accommodating national minorities, the more

it will strengthen the sense that these minorities are separate peoples with

inherent rights of self-government, whose participation in the larger country is

conditional and revocable. And if the attachment of national minorities to the

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larger state is conditional, then sooner or later one can expect conditions to

change, so that staying within the federation no longer seems beneficial.

Federalism also provides national minorities with the experience of self-

government, so that they will feel more confident of their ability to go it alone,

and with an already recognised territory over which they are assumed to have

some prima facie historical claim.48

Moreover, if the secession itself can be achieved peacefully, then the costs of

going it alone as a small state have dramatically fallen. In the past, national

minorities needed to join larger countries in order to gain access to economic

markets, and/or to ensure military security. But these beneflts of federalism can

now be achieved through confederal arrangements (like the European

Community, or the North American Free Trade Agreement), and through the

gradual strengthening of international law. If Quebec or Catalonia seceded, they

would still be able to participate in continental or international free trade and

security arrangements.49

In any event, the option of secession will always be present. Indeed, in a

sense, it becomes the default position, or the baseline against which

participation in the federation is measured. Amongst national minorities, the

starting point will not be ‘Why should we seek greater autonomy?’ but rather

‘Why should we continue to accept these limits on our inherent self-

government?’. After all, there seems to be no natural stopping point to the

demands for increasing self-government. If limited autonomy is granted, this

may simply fuel the ambitions of nationalist leaders who will be satisfied with

nothing short of their own nation-state. Any restrictions on self-government—

anything short of an independent state—will need justification.

For all these reasons, it seems likely that multinational federalism will be

plagued with instability, and may eventually devolve into a confederation or

simply break up. What then can keep a multination federation together? Since

the main instrumental arguments for federation (economic markets and military

security) have lost much of their force, it seems that we need to focus more on

the intrinsic benefits of belonging to a federation—that is, the value of

belonging to a country which contains national diversity. In some

circumstances, I think this can be a very powerful argument. For example, Petr

Pithart, the former Prime Minister of Czechoslovakia, reflecting on its

dissolution, stated that:

In the last 55 years, the Czechs have lost—as co-tenants in their common

house—Germans, Jews, Ruthenians, Hungarians and Slovaks. They are

now, in effect, an ethnically cleansed country, even if it was not by their

own will. It is a great intellectual, cultural, and spiritual loss. This is

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particularly true if we consider central Europe, which is a kind of mosaic.

We are still living touristically from the glory of Prague, which was a

Czech-German-Jewish city and a light that reached to the stars. But you

cannot win elections with that kind of argument.50

It seems to me that there often is a ‘great intellectual, cultural and spiritual loss’

when multination states dissolve. But it is not easy to articulate these losses, and,

as Pithart notes, these arguments have not always been politically effective to

date.

CONCLUSION

In this article I have outlined several reasons why federalism may not provide a

viable alternative to secession in multination states. There are limits on the ways

that boundaries can be drawn in a federal system, and on the ways that powers

can be distributed—limits which seriously reduce federalism’s ability to

accommodate the aspirations of national minorities. Moreover, even when

federalism is working well to satisfy these aspirations, it is likely simply to

reinforce the belief that the group is able and rightfully entitled to secede and

exercise full sovereignty. This indeed is the paradox of multinational federalism:

while it provides national minorities with a workable alternative to secession, it

also helps to make secession a more realistic alternative to federalism.

So it would be a mistake to think that implementing federalism will remove

the issue of secession from the political agenda. I should emphasise again that I

am not suggesting that we therefore reject federal solutions. Federalism is often

the only option available for accommodating conflicting national identities

within a multination state. And, even if a federal system eventually dissolves, it

may bequeath important lessons regarding the nature and value of democratic

tolerance.51 So federalism is certainly worth trying.

However, we shouldn’t be overly optimistic about the extent to which

federalism provides a viable long-term alternative to secession. It is wrong, I

think, to suppose that federalism provides a tried and true formula for the

successful and enduring accommodation of national differences. It provides at

best a hope for such an accommodation, but to make it work requires an

enormous degree of ingenuity and good will, and indeed good luck. And, even

with all the good fortune in the world, multinational federations are unlikely to

exist for ever. We shouldn’t expect citizens of a multinational federation to

view themselves as members of ‘one co-operative scheme in perpetuity’, as

John Rawls puts it.52 To demand that sort of unconditional allegiance is to set a

standard that multinational federations are unlikely to meet. A well-designed

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federal system may defer secession—perhaps into the indefinite future. But

secession will remain a live option in the hearts and minds of national

minorities. Indeed, it is likely to form the benchmark against which federal

systems are measured.

NOTES

1 See, for example, Daniel Philpott, ‘In defense of self-determination’, Ethics, vol.

105/2, 1995, pp. 352–85; Alan Buchanan, Secession: The Morality of Political

Divorce from Fort Sumter to Lithuania and Quebec, Boulder CO, Westview Press,

1991; Michael Walzer, ‘The new tribalism’, Dissent, vol. 39, spring 1992, pp.

164–71.

2 See Donald Horowitz, ‘Self-determination: politics, philosophy, and law’, in

Will Kymlicka and Ian Shapiro (eds), Nomos 39: Ethnicity and Group Rights, New

York, New York University Press, 1997, pp. 421–63.

3 See, for example, Daniel Elazar’s Federalism and the Way to Peace, Institute of

Intergovernmental Affairs, Queen’s University, Kingston, 1994, and his Exploring

Federalism, Tuscaloosa, University of Alabama, 1987.

4 By ‘institutionally complete’, I mean containing a set of societal institutions,

encompassing both public and private spheres, which provide members with

meaningful ways of life across the full spectrum of human activities, including

social, educational, religious, economic and recreational life. For a fuller

discussion, see my Multicultural Citizenship: A Liberal Theory of Minority Rights,

Oxford, Oxford University Press, 1995, ch. 5.

5 For a survey of the rights of national minorities in the United States, see Sharon

O’Brien, ‘Cultural rights in the United States: a conflict of values’, Law and

Inequality Journal, vol. 5, 1987, pp. 267–358; Judith Resnik, ‘Dependent

sovereigns: Indian tribes, states, and the federal courts’, University of Chicago Law

Review, vol. 56, 1989, pp. 671–759; Alexander Aleinikoff, ‘Puerto Rico and the

constitution: conundrums and prospects’, Constitutional Commentary, vol. 11,

1994, pp. 15–43.

6 On the language of nationhood by Aboriginals and the Québécois, see Jane

Jenson, ‘Naming nations: making nationalist claims in Canadian public

discourse’, Canadian Review of Sociology and Anthropology, vol. 30, no. 3, 1993, pp.

337–58. I should note that Aboriginal peoples are not a single nation. Aboriginals

in Canada can be divided into eleven linguistic groups, descended from a number

of historically and culturally distinct societies. It has been estimated that there are

35–50 distinct ‘peoples’ in the Aboriginal population, see Paul Chartrand, ‘The

aboriginal peoples in Canada and renewal of the federation’, in Karen Knop et al.

(eds), Rethinking Federalism, Vancouver, University of British Columbia Press,

1995.

7 On the Communist world, see June Dreyer, China’s Forty Millions: Minority

Nationalities and National Integration in the People’s Republic of China, Cambridge

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MA, Harvard University Press, 1979; Walker Connor, The National Question in

Marxist-Leninist Theory and Strategy, Princeton, Princeton University Press, 1984.

On the Third World, see Alemante Selassie, ‘Ethnic identity and constitutional

design for Africa’, Stanford Journal of International Law, vol. 29, no. 1, 1993, pp. 1–

56; Basil Davidson, The Black Man’s Burden: Africa and the Curse of the Nation-State,

New York, Times Books, 1992.

8John Porter, The Measure of Canadian Society, Ottawa, Carleton University Press,

1987, p. 154; cf. Jeffrey Reitz and Raymond Breton, The Illusion of Difference:

Realities of Ethnicity in Canada and the United States, Ottawa, C.D.Howe Institute,

1994.

9 Gerald Johnson, Our English Heritage, Westport, Greenwood Press, 1973, p. 119.

For the history of language rights in the United States, see Heinz Kloss, The

American Bilingual Tradition, Rowley, Newbury House, 1977; Edward Sagarin and

Robert Kelly, ‘Poly-lingualism in the United States of America: A multitude of

tongues amid a monolingual majority’, in William Beer and James Jacob (eds),

Language Policy and National Unity, Totowa, Rowman and Allenheld, 1985, pp.

21–44. As both note, the imposition of English was more ‘ruthless’ for national

minorities than for immigrants, since the latter expected to integrate, whereas

imposing English on national minorities required the coercive disbanding of long-

standing educational, political and judicial institutions using the minority’s

mother-tongue.

10 M.Combs and L.Lynch, quoted in Rodolpho de la Garza and A.Trujillo, ‘Latinos

and the Official English debate in the United States’, in David Schneiderman

(ed.), Language and the State: The Law and Politics of Identity, Cowansville, Editions

Yvon Blais, 1991, p. 215; cf. Linda Chavez, Out of the Barrio: Toward a New Politics

of Hispanic Assimilation, New York, Basic Books, 1991, p. 42. Hispanic immigrant

groups have expressed an interest in bilingual education, but they view Spanish-

language education as supplementing, not displacing, the learning of English. As a

general rule, immigrants to the United States who speak Spanish are expected to

integrate into the mainstream Anglophone society just as much as immigrants

who speak Portuguese, Urdu or any other language. For a careful discussion of

this, see the article by de la Garza and Trujillo cited above.

11 I discuss this and other confusions regarding the term ‘multiculturalism’ in

Multicultural Citizenship, ch. 2.

12 Some national groups employ a descent-based definition of membership—e.g.

Germany; the Afrikaners in South Africa also have a descent-based conception of

national membership. This used to be true of French Canada as well, and twenty

per cent of Québécois still hold that immigrants cannot call themselves

Québécois, see Jean Crête and Jacques Zylberberg, ‘Une problématique floue:

l’autoreprésentation du citoyen au Quebec’, in Dominique Colas et al. (eds),

Citoyenneté et nationalite: Perspectives en France et au Quebec, Paris, Presses

Universitaires de France, 1991, pp. 425–30. However, the majority of

Quebecers, like most other national groups in the West, define membership in

terms of participation in a societal culture, not descent. On the increasing

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disjunction between ethnic origin and language-group membership, see Leslie

Laczko, ‘Canada’s pluralism in comparative perspective’, Ethnic and Racial

Studies, vol. 17, no. 1, 1994, p. 29.

13 African-Americans are an important example of an ethnocultural group which

does not fit these categories. They do not fit the voluntary immigrant pattern,

not only because most were brought to America involuntarily as slaves, but also

because when they arrived they were prevented (rather than encouraged) from

integrating into the institutions of the majority culture (e.g. racial segregation;

laws against miscegenation and the teaching of literacy). Nor do they fit the

national minority pattern, since they do not have a homeland in America or a

common historical language.

They came from a variety of African cultures, with different languages, and no

attempt was made to keep together those with a common ethnic background. On

the contrary, people from the same culture (even from the same family) were

often split up once in America. And even if they shared the same African

language, slaves were forbidden to speak it, since slave-owners feared that such

speech could be used to foment rebellion. Moreover, before emancipation they

were legally prohibited from trying to recreate their own culture (e.g. all forms

of black association, except churches, were illegal). The historical situation of

African-Americans, therefore, is very unusual. They were not allowed to

integrate into the mainstream culture, nor were they allowed to maintain their

earlier languages and cultures, or to create new cultural associations and

institutions. They did not have their own homeland or territory, yet they were

physically segregated. So we should not expect policies which are appropriate for

either voluntary immigrants or national minorities to be appropriate for African-

Americans, or vice-versa. For a discussion of their unique status, and other

anomalous groups, see Multicultural Citizenship, chapters 2 and 5.

However, a recent survey of ethnocultural conflicts around the world suggests

that the two broad categories I have outlined do cover most groups involved in

these conflicts, see Ted Gurr, Minorities at Risk: A Global View of Ethnopolitical

Conflict, Washington DC, Institute of Peace Press, 1993.

14 Other characteristic features of federalism include the existence of a bicameral

legislature at the federal level, with the second cham ber intended to ensure effect ive

representation for the federal subunits in the central government. Thus, each

federal subunit is guaranteed representation in the second chamber, and smaller

subunits tend to be over-represented. Moreover, each subunit has a right to be

involved in the process of amending the federal constitution, but can unilaterally

amend its own constitution. In defining federalism in this manner, I am following

Wheare’s classic account, K.C.Wheare, Federal Government, New York, Oxford

University Press, 1964, 4th ed., chapters 1–2; cf. Jonathan Lemco, Political

Stability in Federal Governments, New York, Praeger, 1991, ch. 1. For a typology of

various ‘federal-type’ arrangements—which distinguishes federations from

confederations, consociations, federacies, legislative unions, associated states and

condominiums, see Elazar, Exploring Federalism, ch. 2.

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15 On non-territorial forms of minority rights, see J.A.Laponce, ‘The government of

dispersed minorities: from Constantinople to Ottawa’, in Tamas Kozma and Peter

Drahos (eds), Divided Nations, Budapest, Educatio Publishing, 1993. On the

‘millet system’, see my ‘Two models of pluralism and tolerance’, Analyse & Kritik,

vol. 14/1, 1992, pp. 33–56.

16 I develop this at length (and discuss the few exceptions) in Multicultural Citizenship,

ch. 5, and ‘Social unity in a multiethnic state’, Social Philosophy and Policy, vol. 13/

1, 1996. Exceptions to this generalisation include certain immigrant-based

religious sects which seek to disassociate from the mainstream society.

17 For a defence of this claim, see Joseph Carens, ‘Membership and morality:

admission to citizenship in liberal democratic states’, in William Brubaker (ed.),

Immigration and the Politics of Citizenship in Europe and North America, University

Press of America, 1989, pp. 31–49. Germany has recently amended its

naturalisation policies to make it easier for Turks to apply for citizenship,

although the application is still only approved on a selective and discretionary

basis, so that Turks still face great uncertainty about whether they will be able to

become equal participants in German society.

18 See the discussion of the ‘federalist revolution’ in Elazar, Exploring Federalism, ch.

19 For a discussion of why national identity has been so enduring, and why national

minorities differ in this respect from immigrants, see Multicultural Citizenship,

chapters 5–6.

20 For the rest of the article, I will use the term ‘ethnonational’ in the context of

national minorities in a multination state, as distinct from the more general term

‘ethnocultural’, which encompasses both national minorities and immigrant

groups.

21 Alexander Hamilton, James Madison and John Jay, The Federalist Papers, New

York, Bantam, 1982. Jay not only ignores the sizeable black population, but also

pockets of non-English immigrants (particularly Germans), and the remnants of

Indian tribes who had been dispossessed of their lands.

22 Hence Nathan Glazer is quite wrong when he says that the division of the United

States into federal units preceded its ethnic diversity; see his Ethnic Dilemmas:

1964–1982, Cambridge MA, Harvard University Press, 1983, pp. 276–77. This

is true of the original thirteen colonies, but decisions about the admission and

boundaries of new states were made after the incorporation of national

minorities, and these decisions were deliberately made so as to avoid creating

states dominated by national minorities.

23 See Barbara Thomas-Woolley and Edmond Keller, ‘Majority rule and minority

rights: American federalism and African experience’, Journal of Modern African

Studies, vol. 32, no. 3, 1994, pp. 416–17. Despite emphasising this difference

between the American experience and the situation of most multinational

federations, Thomas-Woolley and Keller do not, I think, fully consider its

implications for the relevance of the American model to other countries.

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24 James Madison, The Federalist Papers, no. 10, New York, Bantam, 1982, pp. 54,

61. The belief that federalism helps prevent tyranny was one reason why

federalism was imposed by the Allies on Germany after World War II. It was

supposed to help prevent the re-emergence of nationalist or authoritarian

movements. For a critique of the claim that federalism is inherently more

protective of individual liberty, see Martha Minow, ‘Putting up and putting

down: tolerance reconsidered’, in Mark Tushnet (ed.), Comparative Constitutional

Federalism: Europe and America, New York, Greenwood, 1990, pp. 77–113; Franz

Neumann, ‘Federalism and freedom: a critique’, in Arthur MacMahon (ed.),

Federalism: Mature and Emergent, New York, Russell & Russell, 1962, pp. 44–57.

25 As he put it, ‘the most common and durable source of factions has been the

various and unequal distribution of property’. A lesser concern was the periodic

schisms within the Protestant churches, which often gave rise to upsurges of

religious conflict.

26 Philip Resnick, ‘Toward a multination federalism’, in Leslie Seidle (ed.), Seeking

a New Canadian Partnership: Asymmetrical and Confederal Options, Montreal, Institute

for Research on Public Policy, 1994, p. 71.

27 If the United States is the paradigm of territorial federalism, what is the prototype

of multinational federalism? Elazar argues that Switzerland is ‘the first modern

federation built upon indigenous ethnic and linguistic differences that were

considered permanent and worth accommodating’; see Daniel Elazar, ‘The Role

of federalism in political integration’, in D.Elazar (ed.), Federalism and Political

Integration, Ramat Gan, Turtledove Publishing, 1987, p. 20. Yet, as Murray

Forsyth notes, the old Swiss confederation, which existed for almost five hundred

years, was composed entirely of Germanic cantons, in terms of ethnic origin and

language. While French- and Italian-speaking cantons were added in 1815, the

decision to adopt a federal structure was not primarily taken to accommodate

these ethnolinguistic differences. According to Forsyth, the Canadian federation

of 1867 was the first case where a federal structure was adopted to accommodate

ethnocultural differences. This is reflected in the fact that the 1867 Constitution

not only united a number of separate provinces into one country, it also divided

the largest province into two separate political units—English-speaking Ontario

and French-speaking Quebec—to accommodate ethnocultural divisions, see

Murray Forsyth, ‘Introduction,’ in M.Forsyth (ed.), Federalism and Nationalism,

Leicester, Leicester University Press, 1989, pp. 3–4.

28 Some of the remaining fourteen Communities are not simply regional divisions,

but form culturally distinct societies, even if they are not self-identified as distinct

‘nations’. This is true, for example, of the Balearic Islands, Valencia and Asturias,

where distinct languages or dialects are spoken. But many of the Autonomous

Communities do not reflect distinct ethnocultural or linguistic groups. For a

discussion of Spain’s Autonomous Communities, and their varying levels of

ethnocultural distinctiveness, see Audrey Brassloff, ‘Spain: the state of the

autonomies’, in Forsyth (ed.), Federalism and Nationalism, pp. 24–50.

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29 See Citizen’s Forum on Canada’s Future, Report to the People and Government of

Canada, Ottawa, Supply and Services, 1991, figure 2, p. 158. See also Philip

Resnick, p. 73, and the references in note 31 below.

30 See the references in note 5 above.

31 On English-Canadian opposition to special status, see Alan Cairns, ‘Constitutional

change and the three equalities’, in Ronald Watts and Douglas Brown (eds),

Options for a New Canada, University of Toronto Press, 1991, pp. 77–110; David

Milne, ‘Equality or asymmetry: why choose?’, in ibid., pp. 285–307; Andrew

Stark, ‘English-Canadian opposition to Quebec nationalism’, in R.Kent Weaver

(ed.), The Collapse of Canada?, Washington DC, Brookings Institution, 1992, pp.

123–58. Stephane Dion, ‘La fédéralisme fortement asymétrique’, in Seidle (ed.),

Seeking a New Canadian Partnership, pp. 133–52, cites a poll showing 83 per cent

opposition to special status. See also the articles by Resnick and Milne in ibid. A

certain amount of de facto asymmetry in powers has been a long-standing aspect

of Canadian federalism, but, as these authors discuss, most English-Canadians

have been unwilling to formally recognise or entrench this in the constitution, let

alone to extend it.

32 Brassloff, p. 44.

33 Charles Taylor, ‘Shared and divergent values’, in Ronald Watts and D.Brown (eds),

Options for a New Canada, Toronto, University of Toronto Press, 1991, pp. 53–

76; Jeremy Webber, Reimagining Canada: Language, Culture Community and the

Canadian Constitution, Montreal, McGill-Queen’s University Press, 1994, pp.

232–51.

34 English-Canadians often say to Quebecers, ‘Why can’t we all be Canadians first,

and members of provinces second?’, without realising that this involves asking the

Québécois to subordinate their national identity, whereas for English-Canadians

it simply involves strengthening their national identity vis-à-vis their regional

identity.

35 Philip Resnick, p. 77.

36 As I note below (note 41), changes to the boundaries of the Northwest

Territories will soon create a new nationality-based unit, controlled by the Inuit,

to be known as ‘Nunavut’.

37 Petr Pithart, ‘Czechoslovakia: The loss of the old partnership’, in Seidle (ed.),

Seeking a New Canadian Partnership, p. 164.

38 M.Fernandez, quoted in Brassloff, p. 35

39 For an attempt to develop a workable model of asymmetrical federal

representation, see Philip Resnick, op. cit; cf. my ‘Group representation in

Canadian politics’, in Leslie Seidle (ed.), Equity and Community: The Charter,

Interest Advocacy, and Representation, Montreal, Institute for Research on Public

Policy, 1993, pp. 61–89.

40 For a survey of various forms of asymmetrical federalism, see Elazar, Exploring

Federalism, pp. 54–7; and Dion, op. cit.

41 Two exceptions would be the Navaho in the American Southwest, and the Inuit

in the Canadian Northwest. And indeed the boundaries of the Northwest

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Territories in Canada are being redrawn so as to create an Inuit-majority unit

within the federation.

42 Elazar, Exploring Federalism, p. 229. For the relation of Indian self-government to

federalism, see Frank Cassidy and Robert Bish, Indian Government: Its Meaning in

Practice, Halifax, Institute for Research on Public Policy, 1989; J.A.Long,

‘Federalism and ethnic self-determination: native Indians in Canada’, Journal of

Commonwealth and Comparative Politics, vol. 29/2, 1991, pp. 192–211; Judith

Resnik, ‘Dependent sovereigns’; David Elkins, Where Should the Majority Rule?

Reflections on Non-Territorial Provinces and Other Constitutional Proposals, University of

Alberta, Centre for Constitutional Studies, 1992.

43 On Puerto Rico’s status, and the limits of potential statehood, see Alvin

Rubinstein, ‘Is statehood for Puerto Rico in the national interest?’, In Depth: A

Journal for Values and Public Policy, Spring 1993, pp. 87–99; Aleinikoff, op. cit.

44 The right of national groups to self-determination is affirmed in international law.

According to the United Nations Charter, for example, ‘all peoples have the right

to self-determination’. However, the UN has not defined ‘peoples’, and it has

generally applied the principle of self-determination only to overseas colonies, not

internal national minorities, even when the latter were subject to the same sort of

colonisation and conquest as the former. This limitation on self-determination to

overseas colonies (known as the ‘saltwater thesis’) is widely seen as arbitrary,

and many national minorities insist that they too are ‘peoples’ or ‘nations’, and,

as such, have the right of self-determination.

45 I should emphasise that I am speaking of political perceptions, not historical facts.

A rigorous historical examination may show that the existence of the national

minority as a separate people did not predate that of the larger country. In some

cases, the sense of national distinctiveness arose concurrently with the

development of the larger federation, rather than preceding it, so that the

original formation of the larger country was not, historically speaking, a

‘federation of peoples’. While nationalist leaders often imply that their nation has

existed since time immemorial, historians have shown that the sense of national

distinctiveness is often quite recent, and indeed deliberately invented; see

Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of

Nationalism, London, New Left Books, 1983; Ernest Gellner, Nations and

Nationalism, Oxford, Blackwell, 1983. What matters, however, is not historical

reality, but present-day perceptions. If a minority group today has a strong sense

of national identity, and a strong belief in its right of self-government, then it will

tend to view the federation as having only derivative authority, whatever the

historical facts.

46 I noted earlier that immigrants are increasingly demanding special political

recognition in the form of certain ‘polyethnic’ rights. But this is rarely a threat to

political stability, since in making these demands, immigrants generally take the

authority of the larger political community for granted. They assume, as John

Rawls puts it, that citizens are members of ‘one co-operative scheme in

perpetuity’ (A Theory of Justice, Oxford, Oxford University Press, 1972).

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Immigrants assume that they will work within the economic and political

institutions of the larger society, demanding only that these institutions be

adapted to reflect the increasing cultural diversity of the population they serve.

National minorities, by contrast, question the legitimacy and permanence of the

larger country.

47 To reduce this danger, federal governments have encouraged national minorities

to identify with, and feel loyalty towards, the federal government. This new

identification, it is hoped, would then compete with, and possibly even

supersede, their original national identity. However, the historical record

suggests that these efforts have limited success. See, on this, Kenneth Wheare,

‘Federalism and the making of nations’, in A.MacMahon (ed.), Federalism Mature

and Emergent, pp. 28–43; Robert Howse and Karen Knop, ‘Federalism, secession,

and the limits of ethnic accommodation: a Canadian perspective’, New Europe Law

Review, vol. 1/2, 1993, pp. 269–320; Wayne Norman, ‘Towards a normative

theory of federalism’, in Judith Baker (ed.), Group Rights, University of Toronto

Press, 1994; and my Multicultural Citizenship, cit., ch. 9.

48 Of course, this is only a prima facie claim, since the territory encompassed by the

federal subunit may include the homeland of other national groups. This is a

serious issue in Quebec, where the northern part of the province is the historic

homeland of various indigenous peoples. These indigenous groups argue that

their right of self-determination is as strong as that of the Québécois, and that if

Quebecers vote to secede, they may decide to stay in Canada, so that an

independent Quebec would only include the southern part of the province. See,

on this, Mary Ellen Turpel, ‘Does the road to Quebec sovereignty run through

Aboriginal territory?’, in D.Drache and R.Perin (ed.), Negotiating with a Sovereign

Quebec, Toronto, Lorimer, 1992.

49 On the importance of external threats in the formation and maintenance of

federations, see Lemco, op. cit., chapter 8. This is particularly important for

understanding the Swiss federation. Switzerland is often cited as an example of a

stable multinational federation, with a strong sense of shared loyalty. But what

made the development of a Swiss patriotism possible was the shared experience,

over some five hundred years, of having common enemies, and having to rely on

each other’s military support. Insofar as international bodies reduce the threat of

war, the result, paradoxically, may be to undermine one of the few factors which

supported the development of stable multinational federations.

50 Pithart, p. 198.

51 For example, even if Canadian federalism eventually fails, it would not have been

a moral failure. On the contrary, I would argue that it has been a remarkable

moral success (whatever happens with Quebec), since it has enabled Canadians to

achieve prosperity and freedom with an almost complete absence of violence.

Moreover, federalism has made possible the development of strong liberal and

democratic traditions within both English and French Canada. As a result, should

Canadian federalism fail, the result would almost surely be two peaceful and

prosperous liberal democracies where there used to be one. Multinational

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federalism in Canada may prove to be just a transitional phase between British

colonisation and the birth of two independent liberal-de mocratic states; if so, it will

have been a good midwife. For a more detailed evaluation of the prospects for

federalism in Canada, see my Finding Our Way: Ethnocultural Relations in Canada,

Toronto, Oxford University Press, forthcoming.

52 In developing his well-known contractarian theory of distributive justice, John

Rawls argued that the parties to the social contract should view themselves as

members of ‘one co-operative scheme in perpetuity’. This might be a reasonable

assumption in the case of unitary states or territorial federations. But it is not a

plausible assumption, either sociologically or morally, in the case of multinational

federations.

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Elazar

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33-56

J A Laponce

On non-territorial forms of minority rights, see J.A.Laponce, 'The government of dispersed minorities: from Constantinople to Ottawa', in Tamas Kozma and Peter Drahos (eds), Divided Nations, Budapest, Educatio Publishing, 1993. On the 'millet system', see my 'Two models of pluralism and tolerance', Analyse & Kritik, vol. 14/1, 1992, pp. 33-56.

Exceptions to this generalisation include certain immigrant-based religious sects which seek to disassociate from the mainstream society

Jan 1996
SOC PHILOS POLICY

I develop this at length (and discuss the few exceptions) in Multicultural Citizenship, ch. 5, and 'Social unity in a multiethnic state', Social Philosophy and Policy, vol. 13/ 1, 1996. Exceptions to this generalisation include certain immigrant-based religious sects which seek to disassociate from the mainstream society.

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