Consociational Federalism
Political Elites, Referendums and Constitutional Amendments in Divided Societies
Summary
To explore this issue, we mobilize the theoretical framework of consociational federalism. The latter is a particular form of federalism that takes shape in accordance with the teachings and values of consociationalism (or consociational democracy). Consociational federalism is particularly relevant to study constitutional amendment procedures in divided societies, since it recommends a set of institutional arrangements and normative proposals designed to facilitate the achievement and maintenance of political stability in states marked by significant cleavages.
Using a comparative approach, we study the constitutional amendment procedures in place in Belgium, Canada and Switzerland, while drawing on a number of other systems
Excerpt
Table Of Contents
- Cover
- Half Title
- Title
- Copyright
- Dedication
- Contents
- Acknowledgements
- Foreword
- Introduction
- Preliminary Part: Consociational Federalism as a Lens for Studying Constitutional Amendments in Divided Societies
- Part 1: Constitutional Amendments by Divided Political Elites
- Title 1: Elite Cohesion: Centralized Constitutional Amendment Processes
- Chapter 1: The Grand Political Coalition and its Consociational Influence
- Chapter 2: The Federal Parliament, Qualified Majorities and the Gathering of Representative Elites
- Title 2: Elite Autonomy: Decentralized Constitutional Amendment Processes
- Chapter 3: The Ratification of Constitutional Amendments by Member States and the Asymmetrical Options
- Chapter 4: Constitutional Initiative and Subnational Constitutionalism by Member States
- Part 2: Constitutional Amendments by a Divided People
- Title 3: Consulting the People: When Citizens Vote on Constitutional Amendments
- Chapter 5: Indirect Consultation of Citizens: Parliamentary Dissolution and Elections During Constitutional Amendments
- Chapter 6: Direct Consultation of Citizens: the Political and Legal Consequences of Referendums
- Title 4: Defining the Terms of Referendums: Drafting and Adopting Amendments
- Chapter 7: Initiating a Constitutional Referendum and Drafting its Content
- Chapter 8: Qualified Majorities and Greater Popular Consensus on Amendments
- Conclusion
- Series Titles
For William, who’s been there the whole way
Contents
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Consociational Federalism as a Lens for Studying Constitutional Amendments in Divided Societies
Acknowledgements
This book is a revised and translated version of my doctoral thesis. Its publication, in English, completes a process that has lasted some ten years.
In September 2014, I began a doctoral degree in law, at Université Laval and Université catholique de Louvain, under the supervision of Patrick Taillon and Marc Verdussen. I ended up defending my thesis in July 2020, and in the midst of a pandemic. My first words of gratitude therefore go to my two supervisors, who were mentors and role models for me. I realize what a privilege it was to work with you both. I would also like to thank the other members of the doctoral jury, Geneviève Motard, Céline Romainville, Stéphane Bernatchez and Noura Karazivan, for their rigorous reviews and generous comments on my work.
I had the privilege of receiving several awards for my thesis, including the Medal of the Quebec National Assembly, the Best Thesis Award from the Quebec Society of Comparative Law and the Thesis Award from the Centre d’études en droit administrative et constitutionnel (CEDAC), at Université Laval. I am obviously grateful to each of these organizations.
After completing my doctoral degree, I revised my thesis and I published it, in 2023, as a monograph with the Presses de l’Université Laval, in the Ius Publicum series. Once again, I would like to thank the Presses de l’Université Laval, especially Maximilien Nolet, for the excellent work he did in this publication process. Once published, the book was nominated for the 2023 Book of the Year Award, by the International Forum on the Future of Constitutionalism.
The French publication of this book, by the Presses de l’Université Laval, was greatly facilitated by a postdoctoral fellowship from the Fonds de recherche du Québec – Société et culture (FRQSC), which enabled me to devote myself to research after completing my doctoral degree. I am grateful to the FRQSC and to Johanne Poirier, who supervised my postdoctoral fellowship at McGill University’s Faculty of Law.
The current book, in English, is a translated version of the one published by the Presses de l’Université Laval in 2023. My warmest thanks to Alain-G. Gagnon, for his enthusiastic acceptance of the manuscript in the Diversitas series, as well as to Thierry Waser, for his positive reception of this project. I would also like to thank the Faculty of Law at Université de Sherbrooke and the Research Group on Plurinational Societies (GRSP), for their financial support of this project.
Special thanks to Jeremy Zhu, law student and research assistant at Université de Sherbrooke, for his careful review of the entire manuscript, which really helped improve the final result. Thanks also to Annalays Castro Ramon, law student and research assistant at Université de Sherbrooke, for her comments on parts of the manuscript, after translation into English.
Finally, I am grateful to those closest to me, to my parents Hélène and Marc-André, to my entire family, to my friends-turned-colleagues Amélie and Félix, and all the others who will recognize themselves. I also want to thank my partner, William, who was by my side throughout all the important stages of my academic journey, and who is always so supportive.
Foreword
The Constituent Power: From Singular to Plural
Fundamental amongst fundamental norms, the rules governing the process for amending a constitution represent, in many respects, a cornerstone of the constitutional text. The codification of such a process necessarily raises a twofold question: that of the modalities for amending the rules that constitute a state, and that of the identity of the actors involved in this process. The stakes are high. Indeed, it is a question of identifying the nervous epicentre of the constitutional mechanism: the bodies endowed with the competence of competences, that is the constituent power. Ideally, an amendment procedure should aim to strike a balance between, on the one hand, the need for rigidity and stability of the most fundamental rules and, on the other, a degree of flexibility and minimum adaptability to accommodate the aspirations of future generations. From one constitution to the next, the point of balance varies according to intrinsic parameters, each state being the product of political, social and cultural determinisms rooted in its history.
In Canada, over 50 years of constitutional negotiation and heated political debate were required to define the bodies that would replace the Westminster Parliament in the exercise of constituent power. This “Canadianization” of constitutional amending power – what others have termed the “patriation” of the Constitution – remains, to this day, the most significant constitutional change in the history of Canadian federalism. Since then, new rules have governed the amendment of the Canadian Constitution. Although these rules were never approved by Quebec, they stand out – along with the adoption of the Canadian Charter of Rights and Freedoms – as a refoundation of Canadian constitutionalism and a decisive moment in its history.
Elsewhere, the situation is very different. In Belgium, since 1978 – which marked the beginning of the state reform process – we have been in an (almost) continuous period of constitutional amendment. As a result, in the space of forty years, the Constitution has undergone a hundred times more changes than in the first hundred and fifty years of the Belgian state. Today, the question is not so much whether there will be further reforms, but rather when. The refoundation of the Belgian constitutional system, since the advent of federalism in this country, thus resembles an ongoing process, always in motion. In this respect, Belgium is perhaps a little like Switzerland, where attempts at constitutional amendment follow one another with almost dizzying frequency, especially for a North American observer.
The study of constitutional amendment procedures often reveals the profound nature of a state. Like the DNA of a living organism, the amendment procedure itself generally reflects many of the most fundamental concerns of the state and the legal order put in place by the constituent power. This is one of the premises, more or less implicit, that runs through Dave Guénette’s book. At the very roots of the legal order, these procedures plunge us into the heart of what might be called “demotic” constitutional law. A Constitution “for whom” and “by whom” is, in a way, the question that underlies the convenient but complex notion of “constituent power.”
Like the “legislator,” the constituent power is made up of several organs, and the constituent work draws on a variety of sources. Even when we attempt to tie, on the one hand, the constitutional text and the practical modalities of its amendment with, on the other, a theory idealizing the people or their representatives as the holders of state authority, the sovereignty of the constituent power is never spontaneous. It is the fruit of a number of interactions, each with its own ambiguities. From the legal experts who draft the text, to the elected representatives or citizens who vote on it and to the bodies responsible for interpreting its meaning, the constitutional norm is constructed through the contribution of a variety of actors and processes.
“Constituent power” – the use of the singular allows us to present it conveniently and fictitiously as a single creature – in reality reveals itself to be a plural institution. Its elaboration, ratification, modification and interpretation involve a variety of protagonists. The choice of bodies that formally participate in this complex, plural constituent power is ultimately symptomatic of the place these same bodies occupy in the legal order. In divided societies, historically marked by national, linguistic, ethnic or religious cleavages, the organization and exercise of constituent power are obviously fraught with pitfalls. How can we ensure the participation or representation of the political communities associated in the same constitutional pact? This book assesses the various stages of constitutional amendment in the light of the coexistence of several political communities within a single state.
To this end, Dave Guénette forges a highly useful and innovative theoretical construct from the intersection of existing theories: consociational federalism. Consociational federalism enables him both to delimit his field of study and to establish the yardstick for taking a critical, comparative look at the intensity or degree to which constitutional amendment processes involve the political communities that make up divided federations. While it is sometimes assumed a little too quickly that federalism automatically ensures the coexistence of diverse political communities, Dave Guénette’s book has the virtue of demonstrating that this function attributed to federalism depends on how it is organized and practiced. Consociational federalism, as a theoretical model, is thus an original contribution that makes it possible to take a fresh, nuanced look at constitutional amendment procedures. Drawing on political science and comparative constitutional law, the author intends to demonstrate that divided societies tend to follow the lessons of consociationalism in their constitutional amendment mechanisms, favouring political elites in the search for consensus and limiting the polarizing effects of the more direct intervention of the people. This was an ambitious challenge, which the author has taken up with skill, based on an expert understanding of the key concepts, theories and issues in his field of research.
Dave Guénette carefully examines each of the modalities associated with the exercise of constituent power in the Belgian, Canadian and Swiss federations, attempting to assess their respective contributions to the consociational ideal of the coexistence of political communities within a single state. The result is both a theoretical advance – consociational federalism – and a more concrete, practical assessment of the capacity of minority political communities to influence constitutional amendments in divided societies marked by profound national, linguistic, ethnic or religious diversity. Dave Guénette’s perspective is all-encompassing: from initiative to ratification, from voter participation to that of representatives, the exercise of constituent power is scrutinized from the angle of consociational federalism.
The choice of the Belgian, Canadian and Swiss federalisms as the main corpus of comparison is also an emblematic echo of the contribution of the French-speaking world to deliberation on the coexistence of peoples. Beyond language, these federations also share an attachment to and experience of democracy, pluralism and the rule of law. Dave Guénette’s doctoral work, carried out in turn in Brussels and Quebec City, has nurtured and energized cooperation and sincere friendship between members of several centers, both in Belgium and Quebec. These interuniversity exchanges and collaborations have also contributed to a new wave of federalism studies. Through his many projects and intellectual contributions, Dave Guénette has assumed an important leadership role within this generation.
Representing a substantial contribution to the general theory of federalism, Dave Guénette’s work will undoubtedly be of interest to those studying federalism in Canada, Belgium and Switzerland, and more generally in all federal states concerned with devising a constitutional amendment procedure that respects all the components of the federal structure.
Patrick Taillon & Marc Verdussen
Introduction
A strong and healthy constitution is the first thing to look for.
We must not lose sight that laws are made for men, not men for laws; that laws must be adapted to the character, habits and circumstances of the people for whom they are made.
Contemporary democratic societies sometimes display what the Canadian philosopher Charles Taylor describes as deep diversity.3 In some states, ethnocultural pluralism resulting from migratory movements and population flows is combined with societal and demotic pluralism, resulting from the historical cohabitation of various linguistic, ethnic or religious groups.4 It is easy to see that many contemporary liberal democracies, defined by this deep diversity, are complex societies.5 These two forms of pluralism – ethnocultural and demotic –, although both contribute to the diversity of complex societies, nevertheless respond to very different imperatives and present their own issues and challenges. It is therefore important to distinguish them in order to take account of their particular characteristics.
On the one hand, ethnocultural pluralism, resulting in particular from migratory movements and globalization, requires the adoption of public policies that enable and promote the social integration of immigrants into their host society. Multiculturalism,6 interculturalism7 and republicanism8 are the dominant models for managing this type of pluralism. In addition, legal instruments for the protection of individual rights and freedoms exist in liberal democracies to protect ethnocultural minorities and their right to equality or freedom of religion, for example.9
On the other hand, societal or demotic pluralism, which finds its source in the historical cohabitation, within a society, of several national, linguistic, ethnic or religious groups, also requires certain institutional and constitutional features. The constitutional and state architecture should reflect this plural reality, in particular through recognition of the various groups,10 a distribution of legislative powers that respects their desire for autonomy, and the establishment of central and decentralized institutions that are representative of the diversity of the society.
It is precisely this latter type of pluralism that will be the focus of this book. Indeed, we will not address the particularities or issues relating to ethnocultural pluralism and constitutional amendments, despite the interesting questions this would raise. Rather, our attention will be focused exclusively on the societal diversity that results from the historical presence, within a single state, of several demotic groups enjoying a degree of constitutional recognition.
These states, characterized by this type of national, linguistic, ethnic or religious cleavages, constitute what we will refer to here as divided or plural societies. In using these terms, we directly refer to the concept of plural society of political scientist Arend Lijphart.11 In his seminal work of 1977, Democracy in Plural Societies, Lijphart stated: “a plural society is a society divided by […] segmental cleavages,”12 adding: “Segmental cleavages may be of a religious, ideological, linguistic, regional, cultural, racial, or ethnic nature.”13 He also stated: “The groups of the population bounded by such cleavages will be referred to as the segments of a plural society.”14
Details
- Pages
- 340
- Publication Year
- 2025
- ISBN (PDF)
- 9783034348386
- ISBN (ePUB)
- 9783034348393
- ISBN (Softcover)
- 9783034348379
- DOI
- 10.3726/b22390
- Language
- English
- Publication date
- 2025 (June)
- Keywords
- Consociational Democracy Political Elites Divided Societies Referendums Switzerland Canada Constitutional Amendments Constitutional Law Belgium Federalism
- Published
- Bruxelles, Berlin, Chennai, Lausanne, New York, Oxford, 2025. 340 pp.
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