India Proved That Madison Was Right About Federalism – Bloomberg

An innovation by one of America’s Founding Fathers helps hold together the diverse nation.

It’s easy to think of all the ways India and the U.S. are different, vastly separated by size, culture, religion and wealth. Yet the two are governed by a remarkably similar structure: democratic federalism, in which overlapping power is shared between provinces and a supreme central government.

That’s not a coincidence. India, which broke free of British rule 70 years ago this week, based its structure of government on a model first introduced 230 summers ago by James Madison at the U.S. constitutional convention in Philadelphia.

Madison told the assembled delegates that their proceedings “would decide forever the fate of republican government.” He was right. And India is the proof of it.

The Indian framers didn’t choose federalism to be flattering or ideological. India remained nonallied through much of the Cold War, and Jawaharlal Nehru, the single most influential political leader of the era, had strong socialist impulses.

India’s framers had no particular love for nor attachment to the U.S. Their educations were influenced by the U.K., their former colonial power. They chose a parliamentary system for their national government, not an American-style presidential one.

Rather, the Indian framers chose federalism because they were looking for a system that seemed to allow their people to have a say in local government while simultaneously stopping the potentially fractious provinces from pulling apart. In other words, they picked federalism from the menu of constitutional options because they thought it fit their needs and circumstances.

Today, federalism seems like such a natural phenomenon that it’s easy to forget it had a moment of invention. That invention involved both theoretical analysis and practical compromise.

Madison understood that the citizens of the states were not ready to see them abolished or to accept their consolidation into a single national government. Yet coordination was required — and that couldn’t be accomplished without giving the central government some coercive authority over the states.

Madison’s innovative solution was for the new national government to exercise direct legislative authority over individuals, not simply over the states, as Congress had tried to do under the Articles. At the same time, crucially, the states would govern their citizens with respect to local matters, as they had been doing.

The idea that two different authorities would simultaneously make laws for citizens was far from obvious — and at first glance it seemed riddled with contradiction. America’s colonial legislatures had passed laws for the Crown’s subjects who lived in them. But those legislatures served at the pleasure of the Crown, which reserved the right to veto any laws they enacted.

For its part, Parliament, well along in the process of becoming the true ruler of Britain, brooked no dissent from colonial bodies. The taxes it imposed on the colonies had to be obeyed. The pretensions of the colonies to resist Parliament’s authority had sown the seeds of the Revolutionary War.

Yet Madison insisted that federalism could be done. He believed that Congress should have the power to veto state laws it did not like, which in his opinion would reduce the possibility of flat-out disagreement between the two governments. But despite his repeated insistence on this provision, the other delegates in Philadelphia refused to adopt it.

The result was a system of government that defied the received wisdom that ultimate sovereignty must be found in only one place — that logically speaking there could be no sovereign within a sovereign (imperium in imperio, the founders’ generation liked to say in Latin).

By adopting a system of overlapping sovereigns, the American framers “split the atom of sovereignty,” to use Justice Anthony Kennedy’s rather grand and mildly anachronistic phrase.

The energy released by this revolutionary act was not entirely to the good. The American Civil War can be blamed, at least in part, on the fact that the Constitution didn’t clearly specify whether the states’ rights included the right to secede.

Yet both domestically and globally, the Philadelphia convention gave birth to modern federalism. It is the most important American contribution to democratic government worldwide. 1

Without it, diverse India wouldn’t work as a single nation. The same can be said of Canada, which is probably prouder of its federalism than the U.S. is. Australia is federal. So are Brazil and Germany and (to a large degree) South Africa. Democratic federalism works all over the globe.

India deserves extraordinary credit and respect for its democratic accomplishments on a scale that is almost impossible to imagine. Marking the Madisonian origins of its federalism doesn’t detract from that credit in any way. But in a time where U.S. constitutional democracy is under pressure, it’s good to remember that the system has its good sides, too.

~Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University .

Source: India Proved That Madison Was Right About Federalism – Bloomberg

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