Federal democracy: the very idea

This commentary reflects upon federalism as a distinct category of constitutionalism, one that has often been misconstrued by those who view the federal idea either through a moral-normative lens or with a fixed conception of institutional determinism. Construing federalism through the modern turn in constitutionalism is essential both to locate it within contemporary constitutional thinking and to draw out its distinctiveness, liberating the idea from contested moral precepts and from misleading and ultimately circular conceptions of federal design. In doing so, the commentary reflects upon Cheryl Saunders’ contribution to federal studies and in particular to the relationship between federalism and democracy. The commentary also seeks to demonstrate that the connection between federalism and democracy need not be addressed as a normative aspiration, but is in fact axiomatic within the federal idea itself. It does so, however, by arguing that federal democracy takes on its own character and that key to understanding this is to recognise the distinctive constitutional subjecthood which characterises any federal constitution. To this end federalism, and the model of democracy that attends it, must be understood primarily through the register of constitutional, rather than political, theory.