John Kincaid is President of the Center for the Study of Federalism and the Robert B. and Helen S. Meyner Professor of Government and Public Service at Lafayette College, where he also directs the Meyner Center for the Study of State and Local Government. A leading authority on federalism and intergovernmental relations, he is a fellow of the National Academy of Public Administration and the recipient of major scholarly awards, including the Daniel J. Elazar and Donald Stone Distinguished Scholar Awards. He previously served as Editor of Publius: The Journal of Federalism, Senior Editor of the Global Dialogue on Federalism, Executive Director of the U.S. Advisory Commission on Intergovernmental Relations, and President of several academic associations. The author and editor of numerous influential books and articles, he earned his Ph.D. from Temple University in 1981 and has lectured and consulted on federalism and governance in the United States and more than 25 countries.

Gulan Media: Federalism is practiced in many countries, dividing authority constitutionally between different levels of government. In your view, what fundamental constitutional philosophy or political problem was federalism originally designed to address?

Professor John Kincaid: Modern federalism was invented by the founders of the United States as a way to establish a democratic republic across a very large territory. A unitary national democratic republic would have been impossible to establish and maintain because of the country’s many diversities and people’s attachments to their local republics. None of the people in the thirteen original states were willing to subject themselves to rule by a simple national majority. Many Americans feared that rule by a simple national majority would jeopardize the rights of minorities.

Consequently, the framers of the United States Constitution created a system of shared national rule and local self rule. All the constituent communities, meaning the states, were represented in national government institutions that enacted and enforced laws affecting the entire country. At the same time, each state retained its own constitution and complete government that enabled it to govern itself on a very wide range of subjects. In the United States, what is called the police power refers to the authority of a government to protect and promote the health, safety, morals, order, peace, comfort, and general welfare of the people. Upon ratification of the United States Constitution, the states retained the police power. They did not delegate the police power to the new federal government.

The American states are called states and not provinces or cantons because before the federal union they were independent nation states. Therefore, the United States is not itself a state. It is a union of states, although for the purposes of international law the United States must behave as if it were a state.

A crucial foundational principle of federalism is the idea of covenant derived from the Hebrew Bible. The covenant idea was brought to North America by the Reformed Protestants who emigrated from the British Isles and northern Europe. A covenant is a voluntary and morally binding agreement to establish a partnership for certain purposes in which each party to the covenant retains its own identity. This idea was widely shared among Americans. The covenant idea regards all human relationships, from marriage to the formation of religious congregations, towns, states, and the federal union, as being based on voluntary consent.

Consequently, a willingness to share power is extremely important for establishing and maintaining a federal democratic political system. However, the need to share power also makes it difficult to establish and maintain a federal democracy because most people are reluctant to share power.

Another important principle underlying federalism is an agreement to disagree. Federal unity does not mean uniformity. It involves a willingness to allow constituent political communities to enact policies that some citizens may dislike. This naturally creates tensions in federal systems. A central challenge is determining how far a constituent government can go before crossing a constitutional or moral line that requires federal intervention. In a healthy federal system, these tensions can be resolved through negotiation.

The founding of the United States also required accommodating cultural and political diversity. Although most Americans in seventeen eighty-seven spoke English and were white Protestants, the country contained distinct political cultures. Greater New England was centered around Massachusetts, the middle commercial states included New Jersey, New York, and Pennsylvania, and the southern states stretched from Virginia to Georgia. The deepest political divide was between the northern states that abolished slavery and the southern states that maintained the enslavement of Africans. This divide led to a bloody civil war from eighteen sixty one to eighteen sixty-five.

The framers of the United States Constitution also created a national government with limited powers. They believed the country needed unity primarily for two purposes: national defense and foreign relations, and foreign and interstate commerce. These purposes were understood as the need for a common defense and a common market. All the powers delegated by the states to the federal government fell into these two categories. Everything else remained with the states.

The framers did not seek to create additional political, cultural, or socioeconomic unity because they knew Americans did not desire more unity than necessary. This is why, in eighteen thirty-five, Alexis de Tocqueville described the United States federal government as an incomplete national government.

It is also important to understand that federalism is not static. It is a dynamic system that must evolve to address political, cultural, social, economic, and technological change.

Gulan Media: Federalism has been used to manage national and ethnic divisions in countries such as Canada, Belgium, and Switzerland. Yet in some countries it has not prevented recurring demands for independence. Why has federalism succeeded in some contexts but struggled in others?

Professor John Kincaid: It is difficult to generalize because each case is at least somewhat unique.

In Canada, Quebec held secession referendums in nineteen eighty and nineteen ninety-five. In the nineteen ninety-five referendum, only fifty-point fifty eight percent voted against secession. The United States made its opposition to secession clear. In a nineteen ninety-nine speech in Canada at the inaugural conference of the Forum of Federations, President Bill Clinton stated that the idea that an ethnic or religious group can only have a meaningful communal existence through independence is a questionable assertion. The Premier of Quebec walked out of the conference hall. Since nineteen ninety-five, Quebec and the rest of Canada have agreed to disagree while negotiating mutual accommodations, including the creation of a legal process for secession.

Belgium remains together for two major reasons. First, the question of metropolitan Brussels is unresolved. Second, the European Union is unwilling to admit secessionist regions as member states. This is also a barrier to independence for regions such as the Basque Country and Catalonia. The European Union does not want to encourage secession.

By contrast, Switzerland has a seven hundred year history of recognizing that both the cantons and the nation cannot survive unless they live together despite linguistic and religious differences.

These examples show that federations are held together by a combination of domestic and international conditions. Ten of the world’s twenty eight federations are more than one hundred years old. The remaining federations are younger because they were created more recently, such as Germany in nineteen forty eight, India in nineteen fifty, Nigeria in nineteen sixty three, and Ethiopia in nineteen ninety five. Federalism is a very durable form of government.

Some federations fail because they were never truly federal. The Soviet Union, Yugoslavia, and Czechoslovakia used federalism as a mask for centralized oppression. In some countries, federalism was short lived because political forces transformed it into a unitary state, such as Libya which abandoned federalism in nineteen sixty three. In strictly two community situations, federalism may be impossible, as seen with Serbia and Montenegro from nineteen ninety two to two thousand six and with Greeks and Turks on Cyprus.

Federations created through coercion, especially where communities suffered oppression, are more likely to face secessionist pressures.

Gulan Media: Is an independence referendum unconstitutional within a federal system? Why did central governments such as Spain and Iraq treat the Catalonia and Kurdistan referendums as illegal?

Professor John Kincaid: The answer depends on the nature of the federal system. Canada is the only federation that has a credible constitutional process for secession. The reference to secession in the Ethiopian Constitution is not credible.

Otherwise, neither federal nor unitary countries permit secession. The United States is an indissoluble union of indissoluble states. A state cannot secede because each state voluntarily joined the union. Joining the union was understood as a perpetual commitment, similar to a marriage from which there is no divorce.

However, if a community was coerced into joining a federal or unitary state, then a case can be made for the right to hold a secession referendum. The key question is whether a democratically elected government or the people of the community voluntarily consented to join the union. If not, there should be a right to exit.

A secession referendum should require at least a two thirds majority to ensure strong and clear support for independence. Unlike the referendums in Quebec, an independence referendum should be a clear statement about independence. It is also legitimate to limit how often such referendums can occur to prevent repeated attempts until success is achieved.

Gulan Media: Federations typically have two legislative chambers. What is the difference between the House of Representatives and the Federal Council or Senate, and why is bicameralism important?

Professor John Kincaid: A popularly elected house of representatives reflects the unitary or national aspect of a federal system, while a second chamber representing the constituent states reflects the confederal aspect.

However, second chambers have often been limited in their ability to protect state autonomy because members tend to align with national political parties rather than with the interests of their states. In my view, the best model for a second chamber is not the United States Senate but the German Bundesrat.

Gulan Media: Iraq adopted a federal constitution in two thousand five recognizing the Kurdistan Region. Yet the federal system remains fragile. Is this due to flaws in the constitution or a lack of belief in federalism among political elites?

Professor John Kincaid: I do not know enough about Iraq to answer this question definitively, though I suspect the answer involves both factors.

If the elites who draft a federal constitution are committed to federal principles, they will design a constitution that strengthens federalism. If that commitment is absent, the constitution will not effectively institutionalize federalism.

Scholars widely agree that a federal country must have a federal democratic political culture. All parties to the federal arrangement must embrace federalism and democracy. If such a culture does not exist, no written constitution can sustain federalism.

In most Western federal democracies, there is also a strict separation between religion and the national government. The United States Constitution forbids any religious test for federal office and forbids the federal government from establishing a religion or interfering with religious practice. God is mentioned nowhere in the text of the United States Constitution, though some state constitutions refer to God in their preambles.

Gulan Media: The Iraqi Constitution requires that the Federal Supreme Court be established by a law passed by parliament. The current court predates the Constitution and was never established by law. Is it legitimate?

Professor John Kincaid: If Iraq’s Constitution is the expression of the highest will of the people, then the failure of the Iraqi government to establish the required court makes any non constitutional court illegitimate.

Gulan Media: In your recent work you discuss cooperative and competitive federalism. Which of these approaches is more suitable for a country like Iraq?

Professor John Kincaid: I do not know enough about Iraq to answer this question with full confidence. I would suggest that cooperative federalism is likely to be the best path for Iraq at the present time.

There is a great need to heal many past wounds and to bridge the deep divisions that exist today. Competitive federalism requires the free movement of capital, goods, services, and people. This kind of mobility is difficult in contexts where people face language, religious, and cultural barriers.