Resumen de The formation and amendment of federal constitutions in a Westminster-derived context
This article discusses the formation and amendment of federal and federal-like constitutions in a Westminster-derived or post-Westminster context. The four countries considered are Canada, Australia, India, and the United Kingdom. They are chosen for comparison due to their common historical relationship to Britain and the exercise by the British Parliament of sovereign legislative and constitutive authority over their respective territories. While Canada, Australia, and India are today constitutionally independent of Britain, and while substantial autonomy has been conferred on the devolved parliaments of Scotland, Wales, and Northern Ireland within the UK, each country has secured such independence and autonomy differently. Similarly, the constitutional relationship between the federated polity and its constituent polities in each of these countries has evolved in unique ways. This mixture of “similarity” and “difference” offers an opportunity to isolate the potential effect of particular features of the four constitutional systems and to consider the systemic effect those features might have within federal and federal-like constitutions more generally. It is argued that the mechanisms of constitutional amendment within the four countries are best understood in terms of competing locations of effective constitutive authority, as displayed in the processes by which each federal or federalized constitution was originally established and continues to evolve. Approaching the question this way, the uniquely context-dependent nature of the bargains that underlie the formation of federal and federal-like constitutions can be incorporated into a comparative theory that offers a general account of the formation and amendment of such constitutions having broad explanatory power.
