The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Federal constitutions, like all constitutions, rest on a theory of constituent power. This theory is usually implicit in a country's constitutional law, but sometimes it is explicit-in politics and in law. This theory is one theme examined in our edited volume Courts in Federal Countries: Federalists or Unitarists? (University of Toronto Press 2017).
One of the most famous debates about the constituent power underlying the U.S. Constitution occurred at the founding. In a letter to Richard Henry Lee on December 3, 1787, Samuel Adams said that upon seeing the Constitution, he stumbled at the threshold, for he met with "a National Government, instead of a Federal Union of Sovereign States." Patrick Henry's complaint was similar. How dare they, he asked, frame the Constitution in the name of "We, the People," when a federal constitution is founded on "We, the States."
Theories of the constituent power lying behind a federal constitution usually only make an appearance when courts face questions that cannot be resolved readily by appeals to textual language or precedent, and especially when the question concerns the representation of the people or the distribution of power between the federation and the states.
Such a question arose in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), which struck down an amendment to the Arkansas Constitution that imposed term limits on Arkansas's representatives in the U.S. Congress. The majority held that the amendment unconstitutionally added to the qualifications for congressional office established by the Constitution. The dissenting justices considered, to the contrary, that nothing in the Constitution deprived the people of each state of authority to impose eligibility requirements on their congressional representatives. Justice Clarence Thomas, for the minority, asserted that the ultimate source of the Constitution's authority is the consent of the people of each state, not the consent of the undifferentiated people of the nation as a whole. In his concurring opinion, however, Justice Anthony Kennedy responded that the whole people of the United States asserted their political identity and unity of purpose when they created the federal Constitution.
These sorts of the disputes arise in other federal countries. Federations that come into being through devolution or decentralisation, such as Spain and Belgium, and even in a sense the United Kingdom, are usually quite emphatic about the idea that the constitution, despite its federal features, derives its authority from the people of the nation as a whole. The Indian federation is similar, at least in terms of the way it came into being; it rests on a decision of a Constituent Assembly in which the whole people of India were represented. However, other federal constitutions, like those of Switzerland and Ethiopia, emphasise that the sovereign or constituent power underlying the federal system is a plurality of "Nations, Nationalities and Peoples," as Ethiopia's constitution puts it.
All federal constitutions represent a fine balance between the ideas of "We, the People" and "We, the Peoples." In the Australian case of McGinty v. Western Australia, (1996) 186 C.L.R. 140, the issue arose in a reapportionment case in which it was argued-along lines similar to Baker v. Carr, 369 U.S. 186 (1962) and Wesberry v. Sanders, 376 U.S. 1 (1964)-that the democratic principle underlying the Constitution requires federal and state electoral divisions to contain approximately the same number of eligible voters. Unlike the American decisions, however, a majority of the High Court of Australia rejected this argument, partly on the ground that the Constitution's "adaptation of representative democracy to federalism" made it impossible to say that a principle of equal voting power for each individual in each electorate was a fundamental assumption of the Constitution. The Australian Constitution guarantees the equal representation of each state in the Senate notwithstanding very large differences in state populations, and it does this because when negotiating the terms of the federal bargain, the smaller states were able to insist on equality of representation.
The reverse of this kind of reasoning occurred in South Africa in the National Education Policy Bill case, 1996 (4) BCLR 518. Here, the Constitutional Court refused to adopt the American anti-commandeering principle (affirmed in New York v. United States, 505 US 144 (1992)) on the ground that South Africa's provinces are not sovereign states. Instead, they were created by the Constitution and have only those powers specifically conferred on them by the Constitution. The devolutionary origin of the quasi-federal system in South Africa precluded a sovereign-state result.
India's Supreme Court adopted a similar view when it observed in West Bengal v. India, AIR 1963 SC 1241:
There is no warrant for the assumption that the Provinces were sovereign, autonomous units which had parted with such power as they considered reasonable or proper for enabling the Central Government to function for the common good. The legal theory on which the Constitution was based was the withdrawal or resumption of all the powers of sovereignty into the people of this country and the distribution of these powers … between the Union and the States.
The examples could be multiplied. In the Patriation Reference,  1 S.C.R. 753, the Québec Veto Reference,  2 S.C.R. 793, and the Québec Secession Reference,  2 S.C.R. 217, Canada's Supreme Court had to consider deep questions about the federation's constituent authority when addressing the establishment of an independent Canadian Constitution and the prospect of Québec secession. Similar issues have attended the possible separation of Scotland from the United Kingdom. Indeed, the very ability of the United Kingdom to withdraw from the European Union is an expression of the EU's foundation in a succession of international treaties among still-sovereign states.
When placed into the context of these other federal and quasi-federal constitutional systems, it is possible to rethink the nature of the American union. It may not to be founded on "We, the States," as Samuel Adams and Patrick Henry had hoped, but neither is it founded unambiguously on "We, the American people" considered as an undifferentiated whole. Viewed in comparative perspective, "We, the People of the United States" starts to look more like "We, the Peoples of these United States."
(We thank the government of Québec and Forum of Federations for financial and logistical support in producing this book.)