Category Archives: Federalism

The Supreme Court appears poised to put the country on a slope so slippery that it will make a white-iced roadway look safe to speed on, and even the triple-strong brakes of a Formula 1 race car would be unable to stop the countrys drive into yesteryear.

At Wednesdays Supreme Court hearing in Dobbs v. Jackson Womens Health, Mississippis challenge to Roe v. Wade, Justice Brett Kavanaugh threw Mississippi Solicitor General Scott Stewart a softball question. Kavanaugh asked Stewart to confirm that Mississippi is not arguing that . . . this Court has the authority to order the states to prohibit abortion. Stewart dutifully answered, Correct, Your Honor.

And so, Justice Kavanaugh queried, why should the Court not just be scrupulously neutral on the left-right battle over womens reproductive rights and the asserted right of a fetus to be born? Why not leave the decision on where to draw the line up to each state?

This seems like the tried-and-true approach of someone seemingly devoted to federalism, closely related to states rights. It was good enough for separate but equal segregation in many states up to the Courts 1954 decision in Brown v. Board of Education, and, at first glance, it appears good enough for decimating womens reproductive freedom in 2021.

Conservatives like Kavanagh love federalism until they dont. For now, it works for him, and apparently for at least four other conservative Justices. But once Roe has been consigned to the dustbin of history, the slope will soon get slippery in the extreme, and neither federalism nor states rights will stand in the way of the right wings even more aggressive, anti-abortion agenda.

There is real danger in a kind of post-Roe letdown, with women in blue states feeling secure in their rights while those living in red states are left to fend for themselves should they want to terminate a pregnancy.

Defenders of womens reproductive freedom can ill afford such a letdown or blue-state complacency. The real answer to Kavanaghs softball question about whether the Court was being asked to ban all abortions everywhere was Not yet, just wait.

The path toward such a possibility was signaled when Justice Amy Coney Barrett posited, via her questioning, that there was no grave intrusion on a womans right to choose because potential mothers use contraception to prevent pregnancy or elect adoption after. That appeared to many as insensitivity-on-prednisone.

Underlying it was the furthest thing from neutrality. It takes one of two circumstances to minimize the pain of a mother having no post-pregnancy choice but to give a born child up for adoptionone has never been in the situation or, more importantly, one believes unequivocally in the rights of the unborn.

Thats the heart of the matter. It is easy to foresee that in at least one Justices opinion if not the Courts, there will be reverential mention of those previously unrecognized rights and references, like those heard throughout the Courts oral argument, to the fetus as a person or a child.

And there will lie the iced roadway to not only the end of abortion rights in some states, but ultimately in all. For once that premise is laid in a reactionary Court, how long can it be before a reverse case is brought under the banner of what lawyers call substantive due process, asking the Court to hold that the taking of a fetal life is a constitutional violation of its 14th Amendment interest in life?

This after-Roe agenda that Kavanagh and Barrett previewed is no secret among movement conservatives. As Dan McLaughlin, a senior writer at National Review Online, ominously warned in that magazines recent issue devoted to abortion, Nobody ever said that protecting unborn life would be easy or that major cultural debates could be settled without strife . . . . Ending Roe would be, as Churchill once said, neither the end nor the beginning of the end, but the end of the beginning.

Hadley Arkes, reflecting on the Dobbs oral arguments in First Things, a religious journalfoundedto confront the ideology of secularism, pointed the way to what is coming next on the post-Roe agenda when he asked, [I]f the law protects human life, why should it not also protect the small life in the womb that has never been anything less than human from its first moments?

To make sure that no one missed the point, he warned that a Court that sends things back to the stateswithout saying anything on the question of moral substance, is a Court that will leave us with no coherent sense of what this warring argument over 50 years has really been about.

McLaughlin and Arkes alert us to the fact that moving to stop all abortions is a central plank in the right wing platform to achieve post-liberal America.

And, should the Republican trifecta of 2016 recur control of the House, Senate, and White House how long can it be before there is a carve-out to the filibuster to pass a law declaring the fetus to be a person entitled to federal civil rights protection? With Republicans moving steadily to control the states apparatus for vote counting, that scenario is easy to imagine.

Now comes the ever coy, seemingly credulous Senator Susan Collins to propose the antidote: national legislation to codify Roe. She is apparently shocked! shocked! by the hearing in Dobbs.

Any objective observer could be pardoned if the phrase Too little, too late crosses her mind. Too late because Collins had her chance when she chose instead to accept at face value then-Judge Kavanaughs pablum, pre-confirmation hearing assurances that Roe was the law of the land and that he believed in stare decisis, without her insisting that he complete his pledge by saying that he would actually honor Roes precedent in abortion cases. Too little, because her new proposal would require at least a pro-reproductive choice carve-out of the filibuster, and that appears nowhere in sight.

The Supreme Court train is leaving the station. There is only one realistic rail-switch to return the law and our country to a side-track turnabout. That is to organize for the coming election.

Women and men offended by the coming decision to overturn Roe can protect womens rights by electing representatives who believe in those rights.

Those citizens should join with groups already mobilized to defend our freedom to vote and use it to protect the freedom of women to control their bodies and the autonomy and dignity of all citizens that is the hallmark of our Constitution.

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After Roe, The Coming Fight to End All Abortions Everywhere - Justia Verdict

The consequences of the skewed nature of the Nigerian state are boundless. One fundamental area in this regard is the undermining if not ossification of indigenous languages, especially that of the minorities. The Movement of the Survival of Ogoni People (MOSOP) alarmed by this development in the 1990s articulated a response to it in the Ogoni Bill of Rights to the extent that it desired internal autonomy of people to develop the Ogoni language in an estimated population of half a million. In the din of the call for restructuring, it is often not accented that a truer federation, in other words, genuine federalism will allow the full development of our indigenous languages. Even the big three, namely, Yoruba, Igbo and Hausa are by no means weaned from the proclivity towards extinction. We therefore believe a restructured Nigeria based on true federalism underlined by internal autonomy both fiscal and political, will allow for a focused development of our indigenous languages and survival of our histories.

In his argument for a federal state structure for Nigeria, Chief Obafemi Awolowo emphasised the language imperative for a federal constitutional design. He argued in his Thoughts on Nigerian Constitution (1966) that we should be reminded that of all the cultural equipment of a people, language is the most formidable, the most irrepressible, and the most resistant to diffusion, not to talk of fusion. It lies at the base of human divisions and divergences. And historical evidences of an irrefutable nature have shown firstly, that YOU CAN UNITE BUT CAN NEVER SUCCEED IN UNIFYING PEOPLES WHOM LANGUAGE HAS SET DISTINCTLY APART FROM ONE ANOTHER; and secondly, that the more educated a linguistic group becomes, the stronger it waxes in its bid for political self-determination and autonomy, unless it happens to be the dominant group (emphasis in original).

Federalism allows for full development of the culture of a people, and should be so for the peoples of Nigeria. To be sure, the 2018 Ethnologic Data listed Nigeria as having 526 languages. Of these, 519 are said to be living languages while seven are already extinct. Of the living languages, 509 are indigenous and ten are non-indigenous. Furthermore, 19 are institutional, 78 are developing, 348 are vigorous, 30 are in trouble and 44 are dying.A recent report on the Status of Indigenous Language Broadcasting in NIGERIA by a Communications Scholar, Prof. Umaru Pate, says, Of the figure, three are national major languages, 13 are state languages, and over 44 are local languages. According to the report, Languages considered either too small or non-dominant in any existing political or administrative territory were not listed. Some of the languages are spoken across states with national prevalence and large number of speakers while the majorities are restricted to specific locations in the states and local governments.

It is interesting to note the general condescending approach of our countrys universities to the study of indigenous languages. Apart from the three main languages Hausa, Yoruba and Igbo and others like Edo (Bini), Kanuri, Fulfude and Urhobo, which are taught in some universities across Nigeria, virtually all the languages of the minority groups are not taught even by universities located where the languages are largely spoken. For instance, neither the University of Port Harcourt, Federal University, Otuoke and Niger Delta University offer Izon (Ijaw), the language of a group said to be the 7th most populous in the country nor any local languages in the Niger Delta in spite of their location in the area. This is not salutary to the earlier epic work by acclaimed British Linguistics Scholar, Prof. Kay Williamson to promote the Izon language.

In the entire South-south, only the University of Benin, which offers Edo up to PhD level and Delta State University, Abraka that teaches Urhobo at present up to BA level, promote any form of indigenous languages. Although the BA Linguistics/Urhobo began in the 2002/2003 academic session in the Department of Languages and Linguistics, Delta State University, Abraka, it is yet to be upgraded to post graduate level. Recently the Esan Okpa Initiative (EOI), a newly created socio-cultural association with a vision to advance the cause of the Esan people, located in the central senatorial zone of Edo State, raised the alarm that the Esan language and culture was on a downward slide, facing imminent extinction.

It is sad to note that despite operating in Plateau State that has over 70 indigenous languages, the University of Jos also does not teach any local languages. Neither does the Federal University, Wukari, the Taraba State University or the Kwararafa University offer any of the indigenous languages of the state said to be numbering over 40. None of the over 230 languages in the Middle Belt are taught in any of the universities including the University of Abuja, Nassarawa State University, Federal University, Lafia and all the universities located in Benue State. In fact, many of the indigenous languages particularly in the North where Hausa is more widely used as a language of instruction are dying because they are not taught in schools. All this takes place in a context where our universities are becoming citadels for teaching French, Russian, German, Spanish, Turkish and other European languages instead of becoming centres for learning and teaching of indigenous languages. We need to urgently bring them back from the brink and make them take the lead as we strive to breathe life and promote our indigenous languages. This desire can hardly materialise without a federal state structure.

There may be renaissance in the wind. Interestingly, Tiv language is not only taught at the Federal College of Education, Katsina Ala but all primary and secondary schools in Benue State. Also, in February 2017, the Akwa Ibom State Governor, Udom Emmanuel directed that all secondary schools in the state must teach Ibibio, now offered as a course at the Akwa Ibom State College of Education. Miffed that Ibibio was not taught in schools up till that time, the governor directed the ministry of education to ensure that Ibibio language is taught in all public secondary schools in the state beginning from the next academic sessionTeaching of indigenous languages would help the younger generation appreciate their mother tongue and culture as against foreign languages.

The efforts of some Houses of Assembly in the Southwest to use Yoruba as a language of business, though restricted are noteworthy. The EOI has also resolved to stem the tide by committing huge resources, deploy technology and float mini language clinics in Lagos, Abuja, Port Harcourt and the Diaspora to promote Esan language and culture massively. It has also called on the Edo State government to reintroduce the study of Esan language, which was previously offered at WASCE, in its school curriculum, at the primary and secondary school levels in Esanland, comprising five LGAs of the state, and decried the non teaching of the language by the 40-year old state owned Ambrose Alli University (AAU), Ekpoma.

We fully endorse the proposal by the Nigerian Association of Linguistics to the Federal Government via the Nigerian Education Research and Development Council (NERDC), to ensure that Nigerian universities teach the language of the areas where they are located. Also other local initiatives should be supported with huge resources to produce teaching and learning materials for teaching of indigenous languages while students interested in studying these languages at the tertiary levels should be given full scholarships. Also making a credit pass in a Nigerian language compulsory for admission to the university would enhance the prestige of these languages. We are also at one with the suggestion of linguistic experts that the local languages should be offered as a combined honours course with contemporary courses like IT, Computer Science, Communications etc to make them more attractive.Nevertheless, all these efforts will be more meaningful in a restructured Nigerian state along the path of federalism.

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Federalism is the answer, after all - Part 58 - Guardian Nigeria

As centralizing elites double down on war efforts to subjugate Tigray and reconfigure the federation, an all-inclusive dialogue appears to be the only way out.

At the root of the Tigray war is a contest over the very nature of the state.

This centuries-old struggle has most recently been played out through Prime Minister Abiy Ahmeds consolidation and centralization of power and the Tigray elitesand allies, such as pro multinational federalism forcesconsequent rejection of this.

One of the most salient facts about Ethiopias current predicament is that behind the veil of promoting nationalism, from the likes of Prime Minister Abiy, parties like Ezema, and media outlets like ESAT, lies a regressive vision and a nostalgic glorification of a violently unceremonious past.

This group of elites fulminate about and use the Ethiopian Peoples Revolutionary Democratic Front (EPRDF) as a scapegoat. That outrage is used to mask the fact that they are undertaking another brutal war of subjugation on Tigray that would not have looked out of place during the imperial marches of the late 19th Century.

The government and people of Tigray have, however, refused to bend to Shewaas unitarist commentators like Tamerat Negerea Feyissa so dearly wish them to dobut are instead resisting the threat on the multinational order and are pushed to pursue full independence.

The overthrow of the imperial regime in 1974 and then the defeat of the Dergs dictatorship in 1991, which heralded the birth of a federal, democratic constitutional political order in 1995, should have closed the door forever to the assimilationist nation-building project.

While it is true that the protection and promotion of human and democratic rights were not as progressive as the transformative economic development registered under the EPRDF coalition, the defining feature of post-1991 Ethiopia has in fact been the recognition of diversity of culture, language, religion, and other values.

Ethiopia's ethnofederalism: fact and fiction

By Mistir Sew

This was a major progressive departure from the one culture, one language, and one religion monochromatic nation-building project of the past. But, the appointment of Abiy Ahmed as Prime Minister in 2018 opened up the space for unitarist elites to once again resume the nation-building project.

Former empires like Ethiopia, obsessed with national pride, revel in past glory but cannot envisage what lies ahead. This attachment to the imperial heyday and the violent nation-building project sowed the seeds of the ongoing war in the service of trying to maintain the national mythos.

By doing so, rather than building a diverse future, Ethiopianist elites are reinforcing the states formative defects, and will ultimately scupper the almost three-decade-old effort to transition from an empire into a republic.

Following four years of street protests, the former ruling coalition elected Abiy as its chair, and lawmakers subsequently nominated him as Prime Minister on 2 April 2018.

After admitting the EPRDFs shortcomings, Abiy pledged reform, preached unity, and pursued rapprochement with Eritrea.

This was portrayed by some as a sign of a new beginning for the multinational country. On the contrary, the last three years have resulted in a proliferation of violence. The economy has languished and the already constrained institutions have been further weakened to pave the way for de facto one-man rule, ushering the beginning of the end of the federation.

The EPRDF coalition that brought Abiy to power was the first victim of his power ambitions. Fittingly, the fundamental act of convening elections as per the constitution became the bone of contention in the Tigray-federal government dispute.

Using the COVID-19 pandemic as a pretext, the electoral board postponed polls scheduled for 29 August 2020. As the constitution contained no provisions for such an eventuality, the House of Federation and its Council of Constitutional Inquirylargely filled with pro-federal government expertsoffered a veneer of legal authorization.

A swath of the political opposition, including veteran centrist Lidetu Ayalew, the Oromo Federalist Congress (OFC), the Oromo Liberation Front (OLF), and the Government of Tigray, argued that the way forward should have been forged through debate between political parties because all political actors had a stake in a fragile transition.

They believed that Abiys unitarist vehicle, the Prosperity Party (PP), pushed to delay the polls, as it feared electoral loss.

Emboldened yet fearful, the Prosperity Party attempted to purge its opponents, first in Oromia and then in Tigray.

It subsequently held sham elections this year, with the participation of Ezema and other political entities that hold a similarly regressive take on Ethiopias journey away from a multinational federation to an empire, such as the National Movement of Amhara (NaMA). Some of their leaders now occupy cabinet positions, as Abiy embraces a narrow pluralism at the center while attempting to destroy the pluralistic multinational order.

In response to last years PP machinations, TPLF-led Tigray regional state exercised its interpretation of its constitutional rightsto hold elections as per the federal and Tigray constitutions. Abiys government declared the 9 September election to be null and void.

Conflict in Tigray is about TPLF, not ethnic federalism

By Teshome M Borago

After a series of escalatory measures, including delegitimization and redirecting the federal budget from Tigray, Abiy mobilized forces internally. He also plotted to subjugate Tigray with Eritreas unitarist autocrat, who hates both the TPLF leaders and power-sharing federalism.

More than one year into the war in Tigraya war conducted by the Ethiopian and Eritrean armies, Amhara militias and special forces, and other regional partnersthe people of Tigray are once more under a siege, and therefore still fighting for their right to survive.

Despite the narrative created around the establishment of an elected government, it does little to bolster Abiys legitimacy internally, while jittery external actors like the United States and European Union are focused more on the countrys overall stability and the brutal conduct of the war.

Now, living out its regressive vision, the same regime under the guise of a new government looks set to alter the constitution with the participation of like-minded elites.

They will do this after violating the existing constitution as the Amhara region violently occupied western Tigray, leading to atrocities and the mass expulsion of Tigrayans. Bahir Dar now claims to have altered the administrative boundaries of the Amhara region.

Yet, the constitution could not be clearer.

Under Article 48, it states that: all state border disputes shall be settled by agreement of the concerned States. Where the concerned States fail to reach an agreement, the House of Federation shall decide such disputes on the basis of settlement patterns and the wishes of the peoples concerned.

We must end the civil war to save Ethiopia

By Moges Zewdu Teshome

Amhara irredentists lay claim to an area that has been occupied predominantly by Tigrayans, so the real problem for them was that any fair and constitutionally mandated self-determination procedure would have inevitably reached a decision that would not be in their favor.

Constitutionally mandated rights concerning ethnic rights and self-determination such as Article 39 cannot be amended without the agreement of all regional states. But, disenfranchised and blockaded Tigray is not in a position to influence decisions made at the center pertaining to changes that would effectively dissolve the federation as we know it.

Foreign actors are largely paralyzed by geopolitical interests, but they are right to insist on an all-inclusive dialogue as the only mechanism to regulate the future of Ethiopia within the existing constitutional framework.

Cognizant that the political elites have consistently viewed a democratic order as an existential threat, there now appears to be a vanishingly slim prospect of Ethiopia transforming into a democratic republic that aptly entertains internal diversity, which is the minimum threshold for its survival.

Yet, a belated convening of that all-inclusive dialogue could at least mitigate the disorder and perhaps smooth the process of fragmentation.

Query or correction? Email us

Published under Creative Commons Attribution-NonCommercial 4.0 International licence. Cite Ethiopia Insight and link to this page if republished.

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Irreconcilable aspirations: A regressive Ethiopian vision spells the end of the republic - Ethiopia Insight

Image by Seth Jaworski

Border closures should not become a political issue as the federal election nears in May, industry leaders have said at an aviation summit on Tuesday.

The ACTs Chief Minister for Tourism Andrew Barr said that Prime Minister Scott Morrison cannot win a fight with state premiers over border closures, as states scramble to deal with the Omicron variant.

His comments were made at the first in-person CAPA aviation summit since the pandemic with other industry leaders, in response to a question about whether the election would impact decisions on border closures.

Theres not a lot of political advantage in trying to heavily politicize the closures, he said. At this point, everyones largely announced a timeframe.

I think weve been through that debate; the more vaccinated the community is, the safer it will be [and] the less politics there is in border opening and closing.

Minister Barr said continuing a relentless approach on encouraging vaccinations would lead to border closures becoming a last resort.

While Prime Minister Scott Morrison pledged to end lockdowns and begin the process of borders being reopened by 80 per cent double vaccinations in late July, state premiers ultimately had the final say, which has remained a heavily debated topic.

Dave Sharma, a New South Wales MP said at the summit it is a constitutional reality that states have more control when it comes to borders.

I cant tell you how many people always come to me and say, but why dont you just override the state, or why cant you tell Queensland to open their borders? but the constitution is pretty clear on this.

He said premiers dont want to feel like theyre punishing their voters, as some states open up while others stay closed, but it is good competitive federalism.

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Thats how you want federalism to work; one state leads the way or starts to reform or starts to do differently, and other states seem to fall behind.

He said at a federal level he does not believe borders should be a big political issue.

The aviation industry has suffered greatly from border closures over the past two years, and nations across the globe have continued to disagree over whether they are an effective method to stop the spread.

The South African president Cyril Ramaphosa said the slammed borders on its nation as the Omicron variant emerged would ruin its economy and further damage its recovery from the pandemic.

But Mary-Louise Mclaws, an epidemiologist at the University of NSW and an adviser at the World Health Organisation said at the summit Australias approach to border closures is not wrong.

From a public health, pandemic perspective, closing borders works because while youre closing borders, you are then trying to get your community safe, she said.

She said that during the SARS virus, many argued the impacts of lockdowns and border closures on the economy was too significant, but she believes public health outweighs all other factors.

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Tourism minister says theres no advantage in politicising border closures - Australian Aviation

An excerpt from The Heritage Guide to the Constitution

The Constitution of the United States has endured for over two centuries. It remains the object of reverence for nearly all Americans and an object of admiration by peoples around the world. William Gladstone was right in 1878 when he described the U.S. Constitution as "the most wonderful work ever struck off at a given time by the brain and purpose of man."

Part of the reason for the Constitution's enduring strength is that it is the complement of the Declaration of Independence. The Declaration provided the philosophical basis for a government that exercises legitimate power by "the consent of the governed," and it defined the conditions of a free people, whose rights and liberty are derived from their Creator. The Constitution delineated the structure of government and the rules for its operation, consistent with the creed of human liberty proclaimed in the Declaration.

Justice Joseph Story, in his Familiar Exposition of the Constitution (1840), described our Founding document in these terms:

We shall treat [our Constitution], not as a mere compact, or league, or confederacy, existing at the mere will of any one or more of the States, during their good pleasure; but, (as it purports on its face to be) as a Constitution of Government, framed and adopted by the people of the United States, and obligatory upon all the States, until it is altered, amended, or abolished by the people, in the manner pointed out in the instrument itself.

By the diffusion of power--horizontally among the three separate branches of the federal government, and vertically in the allocation of power between the central government and the states--the Constitution's Framers devised a structure of government strong enough to ensure the nation's future strength and prosperity but without sufficient power to threaten the liberty of the people.

The Constitution and the government it establishes "has a just claim to [our] confidence and respect," George Washington wrote in his Farewell Address (1796), because it is "the offspring of our choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers uniting security with energy, and containing, within itself, a provision for its own amendment."

The Constitution was born in crisis, when the very existence of the new United States was in jeopardy. The Framers understood the gravity of their task. As Alexander Hamilton noted in the general introduction to The Federalist,

[A]fter an unequivocal experience of the inefficacy of the subsisting federal government, [the people] are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the Union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world.

Several important themes permeated the completed draft of the Constitution. The first, reflecting the mandate of the Declaration of Independence, was the recognition that the ultimate authority of a legitimate government depends on the consent of a free people. Thomas Jefferson had set forth the basic principle in his famous formulation:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men deriving their just powers from the consent of the governed.

That "all men are created equal" means that they are equally endowed with unalienable rights. Nature does not single out who is to govern and who is to be governed; there is no divine right of kings. Nor are rights a matter of legal privilege or the benevolence of some ruling class. Fundamental rights exist by nature, prior to government and conventional laws. It is because these individual rights are left unsecured that governments are instituted among men.

Consent is the means by which equality is made politically operable and whereby arbitrary power is thwarted. The natural standard for judging if a government is legitimate is whether that government rests on the consent of the governed. Any political powers not derived from the consent of the governed are, by the laws of nature, illegitimate and hence unjust.

The "consent of the governed" stands in contrast to "the will of the majority," a view more current in European democracies. The "consent of the governed" describes a situation where the people are self-governing in their communities, religions, and social institutions, and into which the government may intrude only with the people's consent. There exists between the people and limited government a vast social space in which men and women, in their individual and corporate capacities, may exercise their self-governing liberty. In Europe, the "will of the majority" signals an idea that all decisions are ultimately political and are routed through the government. Thus, limited government is not just a desirable objective; it is the essential bedrock of the American polity.

A second fundamental element of the Constitution is the concept of checks and balances. As James Madison famously wrote in The Federalist No. 51,

In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place oblige it to controul itself. A dependence on the people is, no doubt, the primary controul on the government; but experience has taught mankind necessity of auxiliary precautions.

These "auxiliary precautions" constitute the improved science of politics offered by the Framers and form the basis of their "Republican remedy for the diseases most incident to Republican Government" (The Federalist No. 10).

The "diseases most incident to Republican Government" were basically two: democratic tyranny and democratic ineptitude The first was the problem of majority faction, the abuse of minority or individual rights by an "interested and overbearing" majority. The second was the problem of making a democratic form of government efficient and effective. The goal was limited but energetic government. The constitutional object was, as the late constitutional scholar Herbert Storing said, "a design of government with the powers to act and a structure to make it act wisely and responsibly."

The particulars of the Framers' political science were catalogued by Madison's celebrated collaborator in The Federalist, Alexander Hamilton. Those particulars included such devices as representation, bicameralism, independent courts of law, and the "regular distribution of powers into distinct departments;' as Hamilton put it in The Federalist No. 9; these were "means, and powerful means, by which the excellencies of republican government may be retained and its imperfections lessened or avoided."

Central to their institutional scheme was the principle of separation of powers. As Madison bluntly put it in The Federalist No. 47, the "preservation of liberty requires that the three great departments of power should be separate and distinct," for, as he also wrote, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny."

Madison described in The Federalist No. 51 how structure and human nature could be marshaled to protect liberty:

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives to resist encroachments of the others.

Thus, the separation of powers frustrates designs for power and at the same time creates an incentive to collaborate and cooperate, lessening conflict and concretizing a practical community of interest among political leaders.

Equally important to the constitutional design was the concept of federalism. At the Constitutional Convention there was great concern that an overreaction to the inadequacies of the Articles of Confederation might produce a tendency toward a single centralized and all-powerful national government. The resolution to such fears was, as Madison described it in The Federalist, a government that was neither wholly federal nor wholly national but a composite of the two. A half-century later, Alexis de Tocqueville would celebrate democracy in America as precisely the result of the political vitality spawned by this "incomplete" national government.

The institutional design was to divide sovereignty between two different levels of political entities, the nation and the states. This would prevent an unhealthy concentration of power in a single government. It would provide, as Madison said in The Federalist No. 51, a "double security. .. to the rights of the people." Federalism, along with separation of powers, the Framers thought, would be the basic principled matrix of American constitutional liberty. "The different governments;' Madison concluded, "will controul each other; at the same time that each will be controulled by itself."

But institutional restraints on power were not all that federalism was about. There was also a deeper understanding--in fact, a far richer understanding--of why federalism mattered. When the delegates at Philadelphia convened in May 1787 to revise the ineffective Articles of Confederation, it was a foregone conclusion that the basic debate would concern the proper role of the states. Those who favored a diminution of state power, the Nationalists, saw unfettered state sovereignty under the Articles as the problem; not only did it allow the states to undermine congressional efforts to govern, it also rendered individual rights insecure in the hands of "interested and overbearing majorities." Indeed, Madison, defending the Nationalists' constitutional handiwork, went so far as to suggest in The Federalist No. 51 that only by way of a "judicious modification" of the federal principle was the new Constitution able to remedy the defects of popular, republican government.

The view of those who doubted the political efficacy of the new Constitution was that good popular government depended quite as much on a political community that would promote civic or public virtue as on a set of institutional devices designed to check the selfish impulses of the majority As Herbert Storing has shown, this concern for community and civic virtue tempered and tamed somewhat the Nationalists' tendency toward simply a large nation. Their reservations, as Storing put it, echo still through our political history.[1]

It is this understanding, that federalism can contribute to a sense of political community and hence to a kind of public spirit, that is too often ignored in our public discussions about federalism. But in a sense, it is this understanding that makes the American experiment in popular government truly the novel undertaking the Framers thought it to be.

At bottom, in the space left by a limited central government, the people could rule themselves by their own moral and social values, and call on local political institutions to assist them. Where the people, through the Constitution, did consent for the central government to have a role, that role would similarly be guided by the people's sense of what was valuable and good as articulated through the political institutions of the central government. Thus, at its deepest level popular government means a structure of government that rests not only on the consent of the governed, but also on a structure of government wherein the views of the people and their civic associations can be expressed and translated into public law and public policy, subject, of course, to the limits established by the Constitution. Through deliberation, debate, and compromise, a public consensus is formed about what constitutes the public good. It is this consensus on fundamental principles that knits individuals into a community of citizens. And it is the liberty to determine the morality of a community that is an important part of our liberty protected by the Constitution.

The Constitution is our most fundamental law. It is, in its own words, "the supreme Law of the Land." Its translation into the legal rules under which we live occurs through the actions of all government entities, federal and state. The entity we know as "constitutional law" is the creation not only of the decisions of the Supreme Court, but also of the various Congresses and of the President.

Yet it is the court system, particularly the decisions of the Supreme Court, that most observers identify as providing the basic corpus of "constitutional law." This body of law, this judicial handiwork, is, in a fundamental way, unique in our scheme, for the Court is charged routinely, day in and day out, with the awesome task of addressing some of the most basic and most enduring political questions that face our nation. The answers the Court gives are very important to the stability of the law so necessary for good government. But as constitutional historian Charles Warren once noted, what is most important to remember is that "however the Court may interpret the provisions of the Constitution, it is still the Constitution which is the law, not the decisions of the Court."[2]

By this, of course, Warren did not mean that a constitutional decision by the Supreme Court lacks the character of binding law. He meant that the Constitution remains the Constitution and that observers of the Court may fairly consider whether a particular Supreme Court decision was right or wrong. There remains in the country a vibrant and healthy debate among the members of the Supreme Court, as articulated in its opinions, and between the Court and academics, politicians, columnists and commentators, and the people generally, on whether the Court has correctly understood and applied the fundamental law of the Constitution. We have seen throughout our history that when the Supreme Court greatly misconstrues the Constitution, generations of mischief may follow. The result is that, of its own accord or through the mechanism of the appointment process, the Supreme Court may come to revisit some of its doctrines and try, once again, to adjust its pronouncements to the commands of the Constitution.

This recognition of the distinction between constitutional law and the Constitution itself produces the conclusion that constitutional decisions, including those of the Supreme Court, need not be seen as the last words in constitutional construction. A correlative point is that constitutional interpretation is not the business of courts alone but is also, and properly, the business of all branches of government. Each of the three coordinate branches of government created and empowered by the Constitution--the executive and legislative no less than the judicial--has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes a solemn oath precisely to that effect. Chief Justice John Marshall, in Marbury v. Madison (1803), noted that the Constitution is a limitation on judicial power as well as on that of the executive and legislative branches. He reiterated that view in McCullough v. Maryland (1819) when he cautioned judges never to forget it is a constitution they are expounding.

The Constitution--the original document of 1787 plus its amendments--is and must be understood to be the standard against which all laws, policies, and interpretations should be measured. It is our fundamental law because it represents the settled and deliberate will of the people, against which the actions of government officials must be squared. In the end, the continued success and viability of our democratic Republic depends on our fidelity to, and the faithful exposition and interpretation of, this Constitution, our great charter of liberty.

Edwin Meese III is Ronald Reagan Distinguished Fellow in Public Policy and Chairman of the Center for Legal and Judicial Studies at The Heritage Foundation. This essay is excerpted from The Heritage Guide to the Constitution, a line-by-line analysis of the original meaning of each clause of the United States Constitution, edited by David Forte and Matthew Spalding.

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The Meaning Of The Constitution | The Heritage Foundation

E Pluribus Unum: out of many states, one nation. In 1776, the newly independent states acted like 13 quarreling brothers and sisters. These united states had vast differences in history, geography, population, economy, and politics. Each state wanted all the powers of sovereign nations: to make treaties, receive ambassadors, coin money, regulate commerce. But they had to give up some of those powers in order to survive on the world stage. To that end, they agreed to the Articles of Confederation, the first constitution of the United States. It created a firm league of friendship among the states, along with a legislature of very limited powers. Congress was very weak: it could wage war and negotiate peace, but not raise taxes to pay for either. Each state had one vote in Congress, and any changes to the Articles required unanimous consent.

After the war ended in 1783, strains in the union reemerged, and the country was in danger of falling apart. The states could not agree on how to pay Revolutionary War soldiers, and many veterans returned home to farms saddled with debt and taxes. In 1786-87, as part of an uprising known as Shays' Rebellion, farmers in western Massachusetts closed the courts to prevent foreclosure on their farms. Also, the states themselves were not inclined to obey the peace treaty they had just signed with Great Britain. As George Washington noted in 1786: If you tell the Legislatures they have violated the treaty of peace and invaded the prerogatives of the confederacy they will laugh in your face. He added: What a triumph for the advocates of despotism to find that we are incapable of governing ourselves.

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Federalism | CONSTITUTION USA with Peter Sagal | PBS

Federalism is principally the theory by which political power is divided between a national and state government, each having their own clear jurisdiction. One of the main focal points of Federalism is that it of decentralisation

Federalism in the Constitution:

Federalism can be found in a number of areas in the US Constitution. It is perhaps most clear through the use of enumerated powers, clearly allocating responsibilities to the Federal Government and responsibilities to the State Governments. In addition to this, it is also shown through the concurrent and implied powers. Finally there are two significant parts of the Constitution that show federalism, namely the Elastic Clause which allows Congress to make all laws that are necessary and proper, and the 10th amendment which guarantees states rights.

An ever changing concept:

Federalism is an ever changing concept, but it can be broadly grouped into three eras. Dual, Cooperative and New Federalism.

Dual Federalism

This period of federalism runs from around 1780-1920 and is generally associated with the collection of unknown presidents. It is characterised with a large focus on states rights, and a limited federal government that was focussed on money, war and peace. The divisions in political power and clear cut between the states and the federal government. It is known as layer cake federalism.

Cooperative Federalism

This period of ran from the 1930s through to the 1960s and saw a huge expansion in the size and scope of the federal government. The majority of Presidents were Democrats, with the exception of Dwight D Eisenhower. The period saw the introduction of new executive departments including Defence (1949), Health, Education & Welfare (1953), Transportation (1966). In addition to this there was a large increase in categorical grants. These were grants allocated to states by the Federal Government for specific projects. Under this model, the division in political power are less clear cut. It is known as marble cake federalism

New Federalism

This period of federalism runs from the 1970s to the 2000s and incorporates mainly Republican Presidents. These Presidents include Nixon, Ford, Reagan, Bush and Clinton. New Federalism is characterised through the shift of power back to the states from the Federal Government. There was an overriding belief, certainly from President Reagan, that the Federal Government did not create the states; the States created the Federal Government. New Federalism is also characterised for the large increase in Block Grants, which are allocated to states by the Federal Government for non specific purposes or in general policy areas.

Why does federalism change?

Firstly, federalism changes purely because the United States has changed. The thirteen colonies have grown to fifty states, and the population has grown from four million people in 1790 through to 275 million in 2000. In addition to this as the country has industrialised there has been an increasing need for government regulation. Federalism can also be changed by Constitutional Amendments and Supreme Court rulings. Finally, events shape federalism, the Great Depression forced the federal government to use its power to assist those in need, as it could do far more than states could, thus a new type of federalism is born. It is likely that federalism will continue to change throughout the future of the United States.

Pros and Cons of Federalism

Pros

Cons

Permits diversity

Can hide economic and social inequalities

Pluralistic

Frustrates the national will, making solutions to problems harder

Increased protection of individual rights

Constant source of conflict between the states and the Federal Government

States can become policy labs e.g. pollution permits in California

Overly bureaucratic, therefore creating a costly system that is resistant to change

Well suited to a geographically large nation

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Federalism | tutor2u

Farmers for federalism

In Bloomberg Quint, Yamini Aiyer argues that Modis failure to pass agricultural reforms makes the case for greater consensus building with states on broad national policy.

More needs to be done to invest in institutions that enable better centre-state coordination. Our frameworks for economic policymaking have to recognise that sustainable long-term reform cannot be achieved by undermining federalism. Rather it requires strengthening federal institutions.

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Is the constitution of India a promissory note? Or was it, to reprise a famous comment of the Mahatmas on another British effort at constitutional founding in India, a post-dated cheque drawn on a crashing bank?

In the Global Intellectual History journal, historian Faisal Devji argued that Indias Constituent Assembly actually ended up entrenching the dominance of caste and community in newly independent India. The Congress single-party status in the aftermath of Partition meant the party was able to deploy a confessional and upper caste majority in the Constituent Assembly to dismantle the long-standing constitutional privileges, however undesirable, of a religious minority in the grip of severe discrimination.

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In the United States, the transportation debate as it usually plays out today amounts to a fight between cars and transit writ large. Like so much else in American life, argues Addison Del Mastro in The New Atlantis, that fight often seems to be just another front in the culture war.

On one side are those who hold to the dream of the Eisenhower era, of being able to make a single, convenient trip from any one point to another meaning ever more roads and bigger highways must be built. On the other side are lovers of the rail, spoke, and shoe, who bemoan how cars emit carbon, highways and parking lots disrupt walkable urban centers, and the high costs of car ownership create yet another barrier for low-income people to live a normal life

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Today, glass is ordinary, on-the-kitchen-shelf stuff. But, explains Carolyn Wilke in The Smithsonian, early in its history, glass was a thing meant for kings.

In a world filled with the buff, brown and sand hues of more utilitarian Late Bronze Age materials, glass saturated with blue, purple, turquoise, yellow, red and white would have afforded the most striking colors other than gemstones. In a hierarchy of materials, glass would have sat slightly beneath silver and gold and would have been valued as much as precious stones were.

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Shoaib Daniyal writes on politics for Scroll.in.

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How Modis lack of federalism led to failure of farm laws and three other weekend reads - Scroll.in

In July last year, India unveiled its first and most comprehensive education policy of the 21st century. As the first omnibus policy since 1986, the New Education Policy (NEP) 2020 has the onerous task of addressing multiple crises facing Indias education system. Addressing the completion of one year of the NEP, Prime Minister Narendra Modi remarked, We are entering the 75th year of Independence. In a way, implementation of NEP has become a vital part of this occasion. This will play a key role in creating a new India and future-ready youth. The Education Minister, Dharmendra Pradhan, called NEP 2020 a visionary education policy for the 21st century through which India is harnessing the capabilities of each student, universalising education, building capacities, and transforming the learning landscape in the country. He stressed that the NEP would make education holistic, affordable, accessible, and equitable. What has been the progress so far? Is the NEP roll-out on track? What are the major challenges facing this mega education policy in the coming decades?

Major Milestones

In the last 16 months since its eventful launch, the NEP has moved some ground in terms of meeting key milestones, notwithstanding the challenges from the global health pandemic. To begin with, the government has done well in terms of building awareness and interests amongst diverse stakeholders on the mission and vision of the NEP. This was marked in a 10-day long Shikshak Parv that saw a series of national-level events featuring the Prime Minister and other key officials. Further, to make the intent more pronounced, the government has renamed the Ministry of Human Resources Development (MHRD) to the Ministry of Education. Significantly, this key ministry has been infused with doses of energy and dynamisms by bringing in Dharmendra Pradhan, the man who brought major transformations in the critical energy ministry. Mr Pradhans proven implementation ability and his diplomatic negotiating skills will come in handy in pushing the mega initiatives that would likely face opposition in Opposition-ruled states.

In terms of roll-out of key NEP activities, the school curriculum has been changed to include artificial intelligence (AI) and financial literary. Given that the mother tongue or regional language received primacy in the NEP, the same has been introduced in several states, albeit on a pilot basis. Further, the ministry has launched the much-talked-about Academic Bank of Credita programme that will provide multiple entry and exit options for students in higher education. These apart, a number of key initiatives, such as NIPUN Bharat Missionimproving childrens learning competencies in reading, writing, and numeracy by the end of Grade III; Vidya Pravesha three-month school preparation module for Grade I children; DIKSHAa teaching-learning repository of e-content; and NISHTHAteachers training programme for the secondary-level teachers. As far as roll-out amongst the states are concerned, only a handful of states, mainly under the ruling party have launched the programme. Karnataka became the first state to implement NEP on August 24.

Recently, Madhya Pradesh and Himachal Pradesh launched a series of NEP initiatives giving a much needed push to this mega policy. On the whole, NEP has started gathering pace.

Five Major Challenges

While the NEP has begun gathering a fair degree of momentum, the road to its realisation is filled with endless potholes. First, the sheer size and diversity of Indias education sector makes implementation an uphill task. For example, sample the size of the school education system alone. With more than 15 lakh schools, 25 crore students, and 89 lakh teachers, India remains the second largest education system in the world. The size of the higher education system is massive too. As per the AISHE 2019 report, Indias higher education sector consists of 3.74 crore students in nearly 1,000 universities, 39,931 colleges, and 10,725 stand-alone institutions. Thus, a countrywide implementation of this mega education policy is going to be a mammoth exercise involving multiple stakeholders at the state, district, sub-district, and block levels. Creating a shared responsibility and ownership amongst key stakeholders, including the private sector, at the state and district levels that have extraordinary diversity is going to be a major challenge for the education leadership.

Second, the NEPs eventual realisation is critically linked to state capacity. As rightly pointed out by the NEP Drafting Committee led by K. Kasturirangan, Indias education system is underfunded, heavily bureaucratised, and lacks capacity for innovation and scale up. The internal capacities within the education ministries (centre and states) and other regulatory bodies are grossly inadequate to steer the magnitude of transformations envisaged in the NEP. For instance, moving away from a rigid content-driven rote learning system to experiential learning and critical thinking would require nothing short of a revolutionary change in the attitudes of the people running the education system, let alone the attitudinal changes amongst the teachers, students, and parents.

This means that thousands of schools and colleges would need capacity building and reorientation with regards to the operational aspects of implementing a mega programme with many experiential goals. In short, the existing organisational structure of the ministry and its ecosystems will have to undergo a massive overhaul. While it is heartening is that the NEP document has laid out a comprehensive roadmap for overhauling the existing regulatory system, and the education ministry is in the process of bringing out a legislation that would facilitate the setting up of a Higher Education Commission of India (in the place of existing regulatory bodies, mainly the UGC, AICTE, and National Council for Teachers Education), one has to wait for the new institutional architecture emerging out of legislative initiatives.

Third, the NEP would largely hinge on the extent of cooperation between the Centre and states. While the NEP has been drafted by the Union government (with inputs from multiple stakeholders including the state governments), its implementation largely depends on the active cooperation of the states. This is because most services-related education are performed by the state governments. In short, the Centre has to skillfully navigate the principles of cooperative federalism and decentralisation while rolling out key initiatives. And this is not an easy act to perform given the sharpening of political polarisation in the recent years and visible breakdown of trust between the Centre and states. A number of Opposition-ruled states have been raising strong objections to several key provisions of the NEP and the manner in which they are being rolled out. The more worrying development is that the Tamil Nadu governments recent decision to not implement the NEP can encourage other Opposition-ruled states to follow a similar path. Thus, managing federal math is critical to the realisation of the NEP.

Fourth, the role of the private sector, particularly in dealing with the higher education system, is extremely critical for translating the inclusionary vision of the NEP. It may be noted that as much as 70% of higher education institutions (colleges and universities) are run by the private sector. Significantly, roughly 65-70% students are currently enrolled in private higher education institutions. This apart, the private sector brings much needed financial resources and innovation. Therefore, it is imperative for the government and regulatory bodies to create workable institutional mechanisms that would harness the contribution of the private sector and recognise them as equal partner in the NEP process.

Finally, the successful execution of key initiatives requires availability of adequate financial resources for decades. In this regard, the NEP has stated that to realise the goals of the new policy, the country has to raise public spending on education to 6% of GDP. This is a daunting task if one considers the past promises and their actual realisation. For instance, the 1968 National Education policy had recommended 6% of GDP be allocated towards education. However, in all these decades, the public spending on education has not gone beyond 3%. Ironically, the union budget allocation for education in the NEP launching year has taken a dip. The education budget was reduced by 6% from INR 99,311 crore in 2020-21 to INR 93,224 crore in 2021-22. While this is understandable given the governments priorities are divided in the face of the COVID-19 pandemic and economic distress that large sections of populations are facing, there is no clear roadmap yet how such enormous sums of financial resources can be augmented.

To sum up, the NEP 2020 is truly a path-breaking document in every sense. The policy, amongst others, aims to address pedagogical issues, structural inequities, broadening of access apart from making the learners future ready while meeting the demands of a 21st century India. Simultaneously, the NEP has the most challenging task of addressing multiple crises in the education system. Its effective implementation is critical if India wants to reap the demographic dividends and capitalise the opportunities from a rapidly growing knowledge economy. Given its transformative potentials, the Centre has shown urgency and a sense of purpose by launching a series of initiatives in the recent months notwithstanding the challenges of the pandemic. A number of states have officially launched the policy and many others are in the process to do the same. Yet, there is a long road ahead of the NEP. Given its scale and the kind of complexity involved in its execution, particularly securing coordination and cooperation amongst diverse stakeholders at state, district, private sector amongst others, makes it a daunting exercise.

Apart from this, one has to deal with weak state capacity, availability of financial resources and, most importantly, the education ecosystem that acts as a drag on new ideas and innovation. Yet, the most critical challenge before NEP is building consensus and getting states to own the first omnibus programme after 1986. In short, the success of the NEP largely hinges on cooperative federalism and states taking ownership of the reforms.

The article was first published in ORF

Niranjan Sahoo, PhD, is a Senior Fellow with ORFs Governance and Politics Initiative. The views expressed in this article are those of the author and do not represent the stand of this publication.

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Success of NEP 2020 Hinges on Cooperative Federalism, States Taking Ownership of Reforms - News18

This article is part of a three-part series on how federalism works in America. Other installments focus on local and state governments.

Federal laws in America apply across the country in every state and city. Congress and the president have important roles to play in making and enforcing those laws, but they are not alone.

We do need a State Department. We do need a Department of Defense, says Karla Jones, director of international relations and federalism at the American Legislative Exchange Council, referring to the federal entities responsible for implementing the countrys foreign and defense policies.

The U.S. relies on a system called federalism: Powers not granted to the federal government are reserved for the states and the people. Its an important concept to understand because citizens encounter different levels of government daily, but in several ways.

Only the federal government can regulate interstate and foreign commerce, declare war and set taxing, spending and other national policies.

These actions often start with legislation from Congress, made up of the 435-member House of Representatives and the 100-member U.S. Senate. Each of the 50 states receives two senators regardless of its population size. The number of representatives each state receives depends on the states population. Bills that Congress approves then go to the president to signinto lawor reject with a veto.

The executive branch is responsible for enforcing the laws Congress makes. It is made up of the president and his or her advisers, as well as multiple departments and agencies. The departments are each headed by a secretary, whom the president appoints with the advice and consent of the Senate. The U.S. hasmore than a dozen departments, and they each take on a specific set of duties. The Treasury Departments duties, for example, include printing and regulating money.

The president also serves as commander-in-chief of the United States Armed Forces. That means the president directs how military weapons will be used, where to deploy troops and where ships are sent. The militarys generals and admirals take their direction from the president.

This graphic summarizes the kinds of entities in each branch of government.

The Supreme Court is the highest federal court in the U.S. and assures the American people of equal justice under law. The courts nine justices one chief judge and eight associate judges interpret the law, in a fair and impartial manner, when disagreements arise on the legality of a law that Congress approves, a regulation that a federal agency implements or other matters.

The Constitution empowers the president, who is elected by the entire nation, to nominate justices. These justices require Senate confirmation to uphold the checks and balancesamong the branches of government.

The Founders separated power because they knew it was the best way to protect our citizens and keep our Constitution secure, President Trump said at the 2017 swearing-in of Justice Neil Gorsuch, whom thepresident nominatedto the Supreme Court.

Landmark decisions from the Supreme Court shape American life, and their ramifications are still felt today. They include the 1954 Brown v. Board of Education case, which outlawed racial segregation in public schools.

The three branches of the federal government get together at the U.S. Capitol when the president delivers the State of the Union address to a joint session of Congress. That speech represents an opportunity for the president to lay out an agenda for the coming year. These addresses are traditionally held in January or February after the new session of Congress convenes. President Trumps third State of the Union address took place on February 4.

A version of this story was previously published on December 26, 2017.

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What does the federal government do? | ShareAmerica