Author Interview: The Federal Contract: A Constitutional Theory of Federalism

Stephen Tierney

Edinburgh Law School

Tell us a little bit about the book.

The book argues that the federal turn in modern constitutional theory – what I call ‘the federal contract’ – represents nothing less than an alternative form of social contract: a distinct register of constitutional government, adapting public law to the management of territorial pluralism. 

Although federalism is a very familiar form of government, characterising the first modern constitution – that of the United States – it has been strangely neglected by constitutional theory. Federalism has tended either to be subsumed within one default account of modern constitutionalism or it has been treated as an exotic outlier – a sui generis model of the state rather than a form of constitutional ordering for the state. In fact, the federal contract represents a highly distinctive order of rule which in turn requires a particular, ‘territorialised’ approach to many of the fundamental concepts with which constitutionalists and political actors operate: constituent power, the nature of sovereignty, subjecthood and citizenship, the relationship between institutions and constitutional authority, patterns of constitutional change, and ultimately the legitimacy link between constitutionalism and democracy. 

In rethinking the idea and practice of federalism, the book adopts a root and branch recalibration of federal government through the conceptual categories which characterise the nature of modern constitutionalism: foundations, authority, subjecthood, purpose, design and dynamics. In doing so the book seeks to challenge many of our assumptions about federalism, arguing that we need to alight upon its core purpose – the management of territorial pluralism within the state; and that in doing so we potentially open up the federal idea to diverse and imaginative institutional innovation.

What inspired you to take up this project? 

Having studied both constitutional theory and federal systems comparatively for many years I have often been struck by how constitutional theorists largely ignored federalism or at least did not consider that it raised important specific questions for constitutional theory. This has always seemed odd. The establishment of plural governments within one polity in an era of otherwise homogenising nation-states was surely a direct challenge to so many of our assumptions about the nature of modern public law, built as they are upon a homogenising connection between state, constitution and people. As I delved deeper into fundamental questions such as territorial constitutional authorship, the nature of territorial constituent power, the significance of territorial subjecthood, and the impact this has upon citizenship, it became increasingly clear that federalism offers a starkly different order of rule from unitary government, one that challenges many of our assumptions about the nature of authority within the modern constitution, and as such one that warrants a detailed and systematic reconsideration of its constitutional essence. 

Whose work was influential on you throughout the project?

Of course I turned to the Federalist papers and other important historical work such as that of James Bryce and A.V. Dicey. I also review but am largely critical of much of the political science and doctrinal constitutional law scholarship of the 20th and 21st centuries which in my view does not assess in sufficient depth the legal-normative implications of the federal constitution. Chapter 2 of the book seeks to explain why the established traditions of federal scholarship – what I call definitionalism, institutionalism, behaviouralism and normativism – have largely failed to unearth the real essence of federalism as a discrete order of legal rule. 

What challenges did you face in writing the book? 

My approach to constitutional theory is always to apply it to institutional practice: constitutional theory is reflexive, serving the instrumental purpose of creating and improving systems of government; as such its conceptualisation always interacts with its practical manifestation. Therefore, the latter part of the book takes on a heavily comparative, empirical dimension which required extensive research across a number of federal constitutions. I also faced an intellectual challenge in setting out to write a book that avowedly challenges so much of what has already been written on a subject, and which makes a large claim – that federalism has not been properly or systematically addressed from the perspective of modern constitutional theory. On a practical level, much of the book was finalised during the Covid pandemic. Like so many others I experienced two lengthy lockdowns, home-schooling three children. It was a challenging time, but you just work through it like everyone else.

What do you hope to see as the book’s contribution to academic discourse and constitutional or public law more broadly?

I hope the book builds upon the advances that have been made in constitutional theory in recent decades, applying these to explain federalism as a form of modern constitutional government, premised conceptually upon the management of territorial pluralism. In doing so I seek to move away from accounts founded in institutional description and analysis and ask fundamental questions about the nature of authority, identity, legitimacy and processes of change in federal systems. 

In that way I seek to unsettle established thinking, but I also seek to revitalise the study of federalism by removing it from the narrow institutional strait-jacket within which it has largely been confined. The challenges facing the world today are great, and one of these is internal diversity within states. Federalism is ideally placed to respond to demotic complexity in institutionally imaginative ways. But for this to happen we need to begin by identifying that the constitutional purpose of federalism is the management of territorial pluralism as it exists within each state. From this starting point we discover that federalism is in fact a commodious and adaptable concept of rule that can be deployed to facilitate the deep territorial variety and complexity of the contemporary state in the 21st century. 

What’s next?

I am interested to see what people make of the book. One of the great pleasures I had from my earlier monographs on national pluralism and constitutional referendums was seeing how other scholars, especially research students, either developed or challenged my findings. I hope this book will be helpful to some and a source of provocative critique for others.

With Nicholas Aroney and George Duke I am also now undertaking a large multi-country study of “Constituent Power in Federal Constitutions”, funded by the Australian Research Council. Constituent authority is a major part of my book and it will be great to delve further into this idea and see how it has manifested itself, or largely been ignored, across federal systems. I hope that we are now seeing a reawakening of the study of federalism by constitutional thinkers at a crucial time for democratic constitutionalism.

Stephen Tierney is Professor of Constitutional Theory in the School of Law, University of Edinburgh and Visiting Professor and Distinguished Research Fellow at Notre Dame Law School London Program.

The Federal Contract: A Constitutional Theory of Federalism is available from Oxford University Press.