Brexit’s Effect on State Architecture: Subsidiarity, Devolution, Federalism and Independence

In an earlier article, some years before the Brexit Referendum, I examined the current ‘architecture’ of the British state, in particular the way in which governmental power was distributed among the nations of the United Kingdom. The theme of this chapter was to show how the continuing (and, as James Bryce argued, inevitable) tension between centripetal and centrifugal forces could be usefully applied to power relations between the various nations of the United Kingdom, and between these nations and Europe, providing a basis for analyzing how these nations are drawn or impelled by some forces towards a centralized unitary polity, whilst at the same time other forces tend towards dispersion of power. The resulting pattern, I suggested, might then be analyzed along a spectrum from centralisation to independence, with subsidiarity, devolution and federalism being seen as weigh stations along the way. In this paper, I will reflect on this analysis in the context of the Brexit Referendum and the negotiations and debates that followed it, and I shall suggest that Brexit’s effects on the state architecture of the United Kingdom are unpredictable but potentially profound.

We the People: These United Divided States

Focusing on U.S. federalism debates in the context of climate change and sanctuary jurisdictions, this paper argues that the federal government’s approach to these inherent transnational concerns represents classic political market failures. Extending John Hart Ely’s notion of addressing such failures – from Democracy and Distrust – the paper examines a dynamic overlooked by both constitutional law and international law scholars. I explore two political market failures: (1) how minorities can be systematically locked out of the political process (such immigrants quintessentially are) and, by contrast, (2) how influential minorities can externalize the costs of their negative conduct through regulatory capture (such as the fossil fuel sector in the climate context). In such cases, policy making above and below the nation-state is helpful for addressing such failures, as we currently see with state and local policy innovation in the climate and immigration contexts.

Interpretive Federalism

U.S. federalism interacts with commitments to democratic equality in complex ways. As a matter of current constitutional law and structure, the U.S. Congress is less “representative” of the national polity as a whole —  if representativeness is examined only from a one-person one-vote perspective —  than each state legislature is with respect to its state population.  Yet the national Congress may be more representative of otherwise neglected minority interests.  The talk will explore the implications of this observation for issues of interpretive federalism, that is, the preemptive scope of federal law.