Friday, April 07, 2006

Is There a Role for the Nation-State in 21st Century Europe?

At the April 7, 2006 Conference of the American Society of Comparative Law and the Italian Society of Comparative Law sponsored by Pennsylvania State University's Dickinson School of Law a number of very interesting insights were developed at a panel entitled Adapting Political Structure to Societal Needs--An Italian Federalism? Redefining the State: Regionalism and Supranationalism. The speakers, Lou Del Duca (Penn State), Patrick Del Duca (UCLA), Giusseppe Franco Ferrari (Bocconi University, Italy), Roberto Toniatti (University of Trento), and Mark Tushnet (Georgetown), looked at the issue of federalism, regionalism, and the consequences of developing Italian federalism. The context was Italy in particular, and its own unique development from a series of independent states, to a unitary state, to a Member State of the European Union, to a state experimenting with identity based federalism.

While the perspectives were all quite different, it became apparent that each of the speakers was dealing with various aspects of the same general question, one which, in many respects, points to the most difficult important issue of the 21st century:

Is there a role for the traditional nation-state when much state power has devolved UP to supra-national organizations (like the European Union), or devolved DOWN to sub-national regional, ethnic, or identity based territories (Catalonia, Scotland, Sicily)?

One answer, provided by the Del Ducas, is that the state ought to survive as a mediator of sorts. In the case of Italy, they attempt to show how, after devolution to the regions, the central organs of the state must serve “to assure the role of the constitutional rule of law” through a human rights based constitutional order designed to preserve the democratic order of the regions and basic human rights on a uniform and consolidated basis. For these purposes, state organs—and particularly the national constitutional court—remain viable even when most other state power is devolved down to the regions. Thus, the principal role of the central government is to mediate the borders of acceptable political behavior within the regions.

Another answer is provided by Franco-Ferrari. He suggests that the state remains useful as a nexus of public networks. Constitutionalism serves particularly as a nexus of ethnos and demos. It is the site, within the Italian political body, where the aggregate of the ethnic regions can meet to produce political consensus for concerted action. Italian constitutionalism, standing alone, is suspect. It has become a chaotic affair, far too easily manipulated by the political party in power. But it is also the product of a top down effort by elites (over the course of centuries) to cobble together a nation from a large number of independent political units. Italian devolution to the regions and metropolitan cities has proven a useful means of restraining constitutional exuberance in the service of politics. But devolution without the tug of a unifying center leans restrains too much. It substitutes a bottom up conception of the state for the measured protections of the modern demos. But modern Italian constitutionalism leaves unanswered the fundamental question—in an asymmetric federal republic divided along ethnic and regional lines, where does the basis of political solidarity lie?

Yet another answer comes from Roberto Toniatti. He focuses especially on the value of regions within a system of overlapping state and supra-national competences. The locus of political power ought to reside in the regional entities—favoring ethnos in the devolution of state power. For Toniatti, the state serves as a safety net to ensure that the business of public governance gets done. The traditional nation-state serves best when it serves as the nanny of related groups of regions amalgamated together into a single political state, at least for purposes of dealing with similarly related sets of ethnic amalgamations (for example, the German Lander amalgamated within the German Republic or the various kingdoms on the British Isles amalgamated as the United Kingdom). These ethnic cousins can join together for limited purposes, with the understanding that effective power remains at the lowest level of political organization. The state is the great nexus point of amalgamations of related ethnic political units. It serves to coordinate these ethnic units. Ultimately, the state is a residuary power. Only those powers that have not been vested in the ethnic regions may be exercised by the central state. This is a form of federalism that almost directly inverts the American model.

Coming from an American perspective, Mark Tushnet, suggests structural and political dynamics as critical to the preservation of the central government of a federation, or, conversely, to effect the devolution of power to subordinate political units, like the American states. He argues that the process of federalism is inherently dynamic with a strong tendency toward centralization in the United States. Ironically federalism seems to have a strong tendency towards devolution in Europe. Centralization in United States federalism can be explained by reference to three factors. First: the formal structure of the American constitution creates strong incentives to centralization. The enumerated powers are specified for the federal government, residuary powers are vested in states. As a result the focus is on the extent of federal power. Second: the sort of symmetrical federalism of the United States does not sustain the growth of regionalism or devolution, especially in the absence of historically embedded and geographically concentrated ethnic divisions. Third: Politics became nationalized in the 20th century (after the federal constitutional amendment requiring the direct election of senators). Real national political parties replaced the coalitions of state based parties that were the focus of political activity through the early FDR years. In contrast, Tushnet suggested that devolution of power in Europe was more likely because European constitutions (unlike the American constitution) provide dual list allocations of powers—specific powers are vested in both national and regional governments. Second, Europe tends towards an asymmetrical federalism that favors the growth of the regions. Third, political party systems tend to mirror ethnic or regional divisions. Moreover, Tushnet argued that once the supra-national institutions of the E.U. are factored in, there remained little to make a case for national centralization. So what is left for the central governments of nation-states? Under this view, the principal role is to mediate between supra-national and regional governments.

So what is left for the central government of the nation-state? Mediator of political behavior within the regions or mediator between supra-national and regional governments? Nexus between ethnos and demos? Nanny or coordinator of related regional governments? None of these descriptions suggest anything like the sort of power traditionally associated with a Westphalian state.

I believe that all of these insights suggest a new, role for the traditional nation-state in a world order in which supra-national and regional governments will acquire much of the authority of the old ethnos and demos once the monopoly of the state. For nation-state constitutionalism, Europe has shown the possible realities of the future of the nation-state in an integrated system of overlapping governments at the local, national and supra-national levels. It can be summarized in three points:

1. European integration benefits tremendously from regionalization and the fragmentation of states. The supra-national institutions of the European Union have increasingly filled the vacuum left by central governments whose authority has been devolved.

2. Fragmentation is possible only because of the existence of a strong framework for supra-national integration. Supra-national integration makes it possible for regions to seek greater autonomy with little fear of any adverse effects to their economies or stability. There is a strong direct relationship between the strength of fragmentation at the regional level and the strength of integration at the supra-national level.

3. The institution in the middle—the nation-state—will remain quit useful but in a new way:

a. It will serve as the space/place where the allocation of power is mediated between region (ethnos) and supra-national (demos);

b. It will serve as the preferred neutral place/space where power can be shared (or where power can be lodged) where allocation to the region or the supra-national government is contested.

c. It will serve as the place/space where the allocation of power between public institutions and large private entities (like transnational corporations and global elements of civil society) can be focused and either (i) resolved, (ii) contested, or (iii) sorted for resolution at either the regional or supra-national level.

None of these consequences or relationships between governments were at the forefront of thinking of many people at the time that European integration began with the formation of the original three European communities. But the power of this unintended consequence is both compelling and will be difficult to resist.

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