Federalism

Constitutional supremacy and constitutional amendment 
rules
Constitutional supremacy  (the juridical superiority of a constitution over 
ordinary laws) and constitutional entrenchment (the fact that it is more difficult 
to amend a constitution compared to ordinary laws) are necessarily associated 
with federalism.
The supremacy and entrenchment of the constitution provide guarantees to the 
subnational units that their existence, status and powers will be recognized and 
their autonomy respected. If these guarantees are breached, the subnational units 
will usually have recourse to a supreme or constitutional court. Without such 
protection there can be no truly federal sharing of sovereignty and no clear 
guarantee of autonomy against majorities at the centre.

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34 International IDEA
Federalism
In a federal country, the process for amending the constitution might have to 
be designed so that it prevents any change to the distribution of powers without 
the consent of the subnational units:
• Australian states have a constituent role: reflecting the federal nature of the 
polity, sovereignty is shared, through the amendment procedure, between 
the people of Australia as a whole and the people of each state as a unit. 
Thus, an amendment to the Constitution of Australia must be approved 
not only by a nationwide popular majority but also by a majority in at 
least four out of the six states.
• In some countries, the role of the subnational units may be invoked only 
when the proposed amendment concerns the powers or jurisdiction of 
those units or other essential parts of the constitution integral to the 
federal arrangement. In India, for example, the constitution can be 
amended by a two-thirds majority of votes cast in both houses of the 
central parliament, but amendments concerning the distribution of powers 
between the central government and the states, the representation of the 
states in the central parliament, and the judiciary, as well as certain other 
provisions, must also be approved by a majority of the state legislatures.
• In some cases, a unanimity rule may apply. The Constitution of Canada 
provides a general amending formula by which amendments must be 
approved by the legislatures of two-thirds of the provinces, having between 
them at least 50 per cent of the population. This rule was designed to 
ensure that each of the two most populous provinces (Ontario and 
Quebec) would, in most cases, have a veto over amendments. Certain 
specified amendments, however (including those relating to the status of 
English and French as official languages and the composition of the 
Supreme Court), require unanimous approval by all provinces. 
Amendments that specifically limit the powers and rights of provinces 
apply only to those provinces adopting the amendment, giving each 
province an opportunity to opt out to protect its rights.
• The principle of federalism may be an unamendable provision, protected 
by a so-called eternity clause (e.g. Germany). Courts may also decide that 
federalism is such an essential and defining feature of the basic structure of 
the political system that it is, in principle, beyond the reach of the 
amending power (e.g. India).
For more information, see International IDEA Constitution-Building Primer 
No. 10, Constitutional Amendment Procedures.

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International IDEA 35
9. Federalism and the constitution as a whole