Week 5 - Federalism, Diversity and Territory

Will Kymlicka and Rawl’s Veil of Ignorance

• Kymlicka on liberalism and nation-building

  • States often promote a shared national identity because it can make governance easier: people may be more willing to support and fund institutions they see as serving a community they belong to.

  • Kymlicka argues that nation-building can be compatible with liberalism—and even support freedom—when it avoids coercion and protects individual rights. People should not be forced to identify with the national community, nor should belonging impose unreasonable costs.

  • A shared language and culture can provide a “societal culture”: a context in which people can understand their options, make meaningful choices, and pursue their goals. In this sense, nation-building can expand autonomy rather than merely constrain it.

• The Rawlsian argument

  • From behind Rawls’s veil of ignorance, people would not know which society or cultural group they would belong to. Kymlicka’s argument is that they might therefore choose a world with stable national communities and protections for everyone, rather than one with completely open borders and no established societal cultures.

  • The point is not that borders or national cultures are automatically just. It is that people would want fair protection for the cultural and social conditions that help them make meaningful choices—without knowing in advance which group they would be born into

Indigenous solutions? Federalism?

• An Indigenous province? But there are as many as 600 diverse communities, territorially dispersed, and often rather small in scale

  • 60 nations in Indigenous Canada, hundreds of diverse small communities, not geographically concentrated (what federalism relies on for self-governance), small in terms of scale, 5% of population 

  • Hard to imagine a straightforward federal solution

Treaty Federalism

• One approach is treaty federalism - nation-to-nation relations, with mutual recognition. Forms?

  • As third order of government within the federation

    • Federal, provincial, indigenous level

    • What will the relationship among them be? How will the third level represent the broad interests of Indigenous communities in Canada?

    • Is it symbolic, real and powerful?

  • As separate constitutional orders running parallel to Canada’s constitutional federation

    • Canadian constitutional federation, and some sort of constitutive Indigenous structure, would fit with the fact that the idea that they see themselves as external nations with treaty rights, operating on a head of state to head of state base

    • Separate constitutional orders running side by side

  • Constitutional pluralism - double federalism: 1867 division of powers, combined with a system of Crown-Indigenous treaties

    • Constitutional order that makes this work

Problems with Treaty Federalism

• Problems:

  • Shared rule institutions within a nation-to-nation model? Where would they reside?

    • Self and shared rule - self rule for Indigenous communities, but how would they participate in shared rule, since they would sit outside of the constitutional order?

  • Bases for fiscal autonomy? Depends on greater access to natural resources than provinces may concede

    • Indigenous communities raise some funds, but mostly dependent on resources from federal govt

    • How do you establish independence for these nations, on what basis would federal provision of resources sit?

    • Solution: land title questions, draw upon treaties (but if this is the case, how do you get the provinces to agree to this?)

New Multilevel Governance Framework

• Historical treaties: The Nisga’a agreement is an important precedent for recognizing Indigenous self-government, though it is often seen as a starting point rather than a lasting or complete achievement.

• Comprehensive Land Claims Agreements: These are newer forms of treaty-making, often used where historic treaties did not settle land rights.

• Broader agreements: Treaties can go beyond resolving land claims. They can also establish shared governance of territories and recognize Indigenous authority.

• Combined approach: Many agreements link land rights or title with self-government arrangements. A more ambitious approach would recognize these together as part of a wider treaty relationship.

• Ongoing challenges: Negotiations have been slow, and progress toward this broader model has been limited. Even where agreements are reached, implementation has often been incomplete

New Multilevel Governance Framework - Judicial Interrpetations

• Courts and Indigenous land rights

  • Provinces often control natural-resource development.

  • Governments must consult Indigenous communities when projects could affect their rights, but consultation does not always mean they can veto a project.

• The Tsilhqot’in decision (2014)

  • The Supreme Court recognized Aboriginal title to a specific area.

  • Indigenous title can require government consent or legal justification for development.

• Key issue

  • Indigenous rights are recognized, but decisions still operate within Canadian law.

  • The debate is whether Indigenous communities have real control over their lands or are mainly consulted by governments

Questions of Sovereignty - Western-Eurocentric vs Indigenous

• Western European tradition: Sovereignty is usually understood as authority over a defined territory, exercised by a state or governing institution. Because it is tied to political authority, it can often be transferred or extended to other places.

• Indigenous traditions: Sovereignty is often grounded in a particular territory, language, history, and relationships with other peoples. It may be understood less as power held by a person or institution and more as an ongoing responsibility arising from relationships with the land.

• Different views of territory and exclusion: Indigenous relationships with land can be deeply place-specific, yet need not treat sovereignty as an exclusive right to keep others out. Use by outsiders may still be unsettling, but the underlying approach may be more open-ended than a model based on exclusive control.

• A key disagreement: The two approaches differ over whether sovereignty necessarily requires exclusivity. Treating sovereignty as shared responsibility, rather than absolute control, can make room for partnership and co-governance.

• Challenges for federalism: Federal systems typically divide authority among governments and jurisdictions. They may struggle to accommodate Indigenous sovereignty if they assume that the Crown holds ultimate, exclusive authority and that Indigenous rights must fit within that framework. Federalizing these relationships therefore requires negotiating how responsibilities, decision-making, and jurisdiction can be shared without simply absorbing Indigenous authority into the state

New Multilevel Governance Framework - Expanded Executive Federalism

• What it means: Expanded executive federalism brings Indigenous organizations into discussions among federal, provincial, and territorial governments.

• Kelowna Accord (2005): The accord involved federal, provincial, territorial, and Indigenous leaders. It is an important precedent for multilateral participation, but it did not establish a permanent system of Indigenous inclusion.

• Growing engagement: Indigenous representatives now participate at different levels, from administrative discussions to high-level meetings.

• Examples of forums:

  • Indigenous leaders have met with premiers before Council of the Federation meetings since 2004.

  • A Permanent Aboriginal Affairs Working Group was established in 2009, with federal participation beginning in 2016.

• Limitations: Participation remains largely informal rather than institutionally guaranteed. Indigenous organizations have limited influence over agenda-setting, and questions remain about how well organizations such as the Assembly of First Nations represent the diversity of Indigenous peoples and communities

New Multilevel Governance Framework - Collaborative Policy-Making Forums

• Can be bilateral or multilateral

• Broad representation of Indigenous stakeholders incorporated into the policy-making process

• As many as 500 political and administrative governance agreements developed between 2000 and 2017 - driven especially by the duty to consult

• But: these can overwhelm the limited institutional capacity and resources of Indigenous governments and organizations, and the federalism problems are not thereby overcome

(start of Kincaid reading) US Founders and Identity

• Need to forge a single identity under 13 separate colonies

• US the first new nation to overthrow colonial rule, but geopolitical pressure immense, founders in survival mode

• Surrounded by colonial powers of GB, FR, Spain, Portugal

• Remaining ununited meant they would end up in conflict with one another

• Needed a seemingly united front worldwide

• High degree of homogeneity: 66% of the population was English, 74% of all congregations Protestant, homogeneity provided a convenient facade

Rhetoric of Unity

• Rhetoric of unity was very intentional

• US Constitution famously says ‘we the people’ even though earlier articles of confederation listed all states by name, but the idea of ‘one people’ was more of an aspirational idea than reality 

• Created a nation state before the people living there had a fully formed consciousness of nationality

• Needed a system to govern mass territory without forcing everyone to conform to one cultural standard

  • If an outside force came in, the whole union would break apart

Territorial Neutrality

• 1785 land ordinance, congress mandated rectangular land survey system, landscape broken into continuous 36 square grid townships, sold for $1 an acre, covers 69% of US today

• The ‘mild west’ - allowed for orderly predictable settlement, but culturally it was not

• S. 16 set aside for public education, but none for religion, government was neutral, whoever moved into these square could ‘choose’ its culture

  • Ex. Pennsylvania translated their constitution into German, because a third of their population was German

• the federal government runs in the background (ex. defense), while the states can administer whatever cultural rules they want

Territorial Neutrality Still Seen Today

• Hamtramck Michigan

• Territorial neutrality still seen today: was originally French, then deeply German, then Polish, and today a Muslim majority

• People pray in the streets while lining up to buy Polish pastries

• Territory is neutral the culture just shifts

• 1984 Oregon

• Followers of spiritual leader moved into territory, legally voted in their own people and took over the grid

Public Powers to States

• Laws governing health, safety, morals, etc. up to states

• Sounds democratic until you look at the history - why the states demanded so much local governance

• 1787 constitutional convention - pushed for this to shield the institution of slavery from federal interference

• If the federal government could administer local morals and authority, they would come after slavery next

Territorial Democracy - Expansion of US in 1850s

• Kansas Nebraska Act 1854 - Allowed settlers to vote on whether territories would be free or slave states

• Peaceful sorting turned into bloody violence, people flooded in to manipulate the vote

• 1861 southern white elites saw themselves as a separate nation, civil war proved that  a nation cannot survive half slave and half free

• Allowing the states local authority shattered the foundation of American federalism

Turning Point - 14th Amendment 1868

• Federal government ended federal neutrality, congress now had authority to enforce fundamental rights in the states

• Massive centralization of power happened in 1960s Civil Rights Revolution

  • SC used constitution to strike down local state laws

• Landmark cases:

  • Brown v Board of Education 1954: Ending segregated schools

  • Roe v Wade 1973: Ending state abortion bans

  • Obergafell v Hodges 2015: Same sex marriage

Problem

• While these federal interventions protected minority rights, they stripped power away from territorial democracies

• Took control of biggest moral issues

• Problem: not everyone is on the same page about this, created explosive polarization

• Supreme Court now decides on these issues, constitution now the battleground

Polarization

• 1789-1965: 68% of justices confirmed by acclimation

• Stakes are now too high, people are reacting on the ground

• The big sort: geographical and cultural self segregation

  • People are moving to be around those with similar beliefs

• 2019: only 2 state legislatures were split between parties

• Today: blue and red states just as polarized as slave and free states were hundreds of years ago

• One exception: 573 sovereign tribal nations

  • Gained restored sovereignty, operate on a government to government basis

(start of Schutter reading) Traditional Multinational Federalism and Normative Theories of Federalism According to Kymlicka and Norman

• Dominant view: Kymlicka and Norman

• Roommate model

• Kymlicka: argument based on liberal nationalism

  •  For humans to have any meaningful freedom or context to make choices in their lives, they need a societal culture(national identity)

  • Without a secure culture, you have no freedom

  • Need self government to protect societal culture from being swallowed by the larger state

• Norman: contract argument

  • Federalism as a negotiation between independent and distinct peoples

  • Two separate homogenous groups come together to form a state for mutual benefit (trade, defence)

  • Treated as an international treaty

Flaws with Kymlicka and Norman’s model

• If this model relies on complete separation, why not just secede?

• Shutter’s critique: if these nations are self contained monolithic cultures, Norman’s model does not explain the state’s ‘togetherness’

• There is no explanation for why secession is not the immediate answer the moment the benefits dry up

• Leaves federalism as an unstable second best option

• This model fails because the entire underlying assumption is incorrect, the idea that cultural groups are monolithic, monolingual units does not reflect humanity

Critiques to Kymlicka (and Norman): Switzerland and Belgium

• (critique to Kymlicka) We see dual identities everywhere: Switzerland case study 

  • A societal does not have to share a common language: 4 distinct linguistic groups in Switzerland

  • Yet they possess a strong Swiss identity, you can be deeply francophone and deeply Swiss at the same time

• (critique to Kymlicka) Belgium case study

  • The idea that if you live in Flanders, you only identify as Flemish (only care about this part of the country)

  • 1999: surveyed citizens to test this monolithic assumption

  • Found that 42.2% of Flemish respondents feel equally Flemish and Belgian

  • Those who identified as only Flemish was small, 7%

  • Overwhelming majority living in the overlap

Designing Political Systems based on this Monolithic Model

• Everyone identifies with overlapping identities, no one fits into one little box, and neither do whole populations

• Designing a political system under this assumption (Kymlicka, giving all the political power and recognition to substate) you are actively erasing dual identity from public sphere entirely 

  • Ex. Giving Flemish population all the power erases the dual identities of those who also identify as Belgian 

• If giving the power to either the substrate or central state erases identities, you need to build a country that respects this dual reality

• Stop looking at federalism as a contract between groups, and start looking at it as individual fairness

John Rawls Veil of Ignorance

• Used it to talk about wealth, building safety nets if you need them, since you do not know if you will be born rich or poor. Adapted this to nationality (Schutter):

• The veil of ignorance: Imagine designing a state without knowing what identity you’ll have in it.

  • You might belong to a regional group, the wider national group, or both.

• Why avoid extremes?

  • Secession could leave people with mixed or statewide identities unrepresented.

  • A unitary state could recognize only the statewide identity and weaken regional identities.

• Why choose federalism?

  • Regional governments can represent regional identities.

  • The federal government can represent the shared, statewide identity.

  • Federalism aims to recognize these identities fairly, whatever identity you end up with.

What does this mean for the real world?

• Requires specific institutional design (3 things)

• You need substrate political communities (ex. QC in Canada)

  • Draws a boundary and offer this group substantial political autonomy over their culture

• If the populations are not neatly geographically separated, you use territorial binationalism

  • Territory belongs to both nations concurrently

  • Safety nets built in (mutual veto powers) so one group does not dominate

  • Majority needed from both groups forces consensus, citizens must participate in both political spheres (local and statewide context)

• Asymmetric power distribution is good under this model

  • Identical treatment, not identical recognition

  • Ex. UK: Welsh national identity different from Scottish national identity (earlier integration into UK vs separate legal and education system)

  • Treating those groups fairly today would mean giving the Scots different powers than the Welsh assembly to function according to their own needs

  • Giving groups what they need to survive and maintain cultural context, does not always mean perfect symmetry

An Ethos of Federalism

• Ensuring a group’s identity is getting their fair share of recognition

• To get everyone invested in this: What the Federal government must do

  • Manufacture a shared state wide identity to avoid citizens reverting to their original identities and the state fracturing

• Shutter’s Ethos of Federalism: Federal gov must court their citizen’s identity

  • Build trust and confidence across borders

  • Enacting policies teaching intercultural respect, honouring multiple flags and anthems, running royal inaugurations in multiple languages - affirms ot multinational reality of the country, we are part of an overarching thing

Why not have a neutral unitary state that is culture blind?

• Cultural neutrality is a myth, impossible

• A government must still operate: what languages are documents printed, what are considered public holidays, where do we draw municipal boundaries for voting districts

• Every decision a government makes unavoidably supports one group over another, you cannot have culturally neutral state

• Federalism argues we distribute this recognition fairly over giving one group all the power and recognition

• Accommodating all these overlapping identities requires drawing a line: wouldn’t everyone want this power if the lines are not drawn? Two groups:

  • QC, Scots, Welsh, etc,: demand changes in political authority, self government to protect their societal culture

  • Racial minorities facing discrimination: want policy changing, seeking equal protection within the existing state, not wanting to form a parallel government

  • Policy vs sovereignty

• Demanding authority (ex. Flanders): how rigid we expect our government sot be

  • The system is purposely dynamic

  • If Flander grows strong enough and the people demands political authority, they should become a candidate to run for self government

  • Institutions adapt to the people

• Conversely, the need for self government disappears if a substrate identity fades over time and everyone identifies with central state 

  • The institutions must track the identities of people, people should not fit themselves into rigid identity boxes