chapter  8
18 Pages

Federalism and the protection of rights and freedoms: affinities and antagonism

What are the interrelations between federalism and the protection of human rights? Such a question arises not only in federations in the strict sense, but in all “compound” states that consist of two levels of government, each having substantial powers and enjoying true autonomy in relation to the other (as for example in “regionalized” countries like Spain or Italy). Given such a situation, each level of government can take positive as well as negative measures in respect to human rights: negative, in exercising its powers in ways that restrict the benefit of rights; positive, in so far as each level of government is able to adopt constitutional and legislative instruments aimed at protecting the enjoyment of rights. Thus, we shall examine in turn: (1) The effects that federalism has on the protection of rights and freedoms; we shall see that the division of powers that characterizes federalism has mostly, albeit not only, beneficial consequences for the protection of the rights of individuals and minorities; (2) The effects of protecting rights and freedoms through a national Bill of Rights and judicial review for the balance of powers in a federation. As we shall see, judicial review by federal courts under a national constitutional instrument can lead to more centralization of powers as well as to more legal standardization, both impinging on the values of federalism.