Federal loyalty and the 'nature' of Federalism

Da Silva, Michael (2020) Federal loyalty and the 'nature' of Federalism. Review of Constitutional Studies, 24 (2), 207-240.

Record type: Article

Abstract

Is the federal loyalty principle — viz., each level of government in a federal system must make non-trivial efforts to ensure non-interference with the jurisdiction of the other — inherent to federalism? Despite controversy about the meaning and scope of ‘ federal loyalty,’ the claim that it is inherent to federalism has a transnational pedigree. If this ‘inherence claim’ is true, it could have substantial implications for global constitutionalism. Among other implications, it could help justify judicial recognition of federal loyalty in federal states that allow judicial review. Unfortunately for proponents of federal loyalty, however, any combination of plausible understandings of federalism and federal loyalty presents a similar kind of multi-lemma problem: One must deny the inherence claim, grant that it is trivial, deny that many paradigmatic federal systems are actually federal, or grant that federal loyalty relies on another underlying normative principle and somehow identify the principle despite no one being able to do so to date. In each case, denying the inherence claim is the best option. Federal states must decide whether to entrench federal loyalty requirements through regular amendment procedures.

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