Emergency Constitutionalism, Federalism, and Pluralism

The numerous crises of the new millennium prove that most constitutions are ill-equipped to deal with them. Most provisions, where they exist, are usually limited to certain fields, such as wars. At the same time, most constitutions lack or insufficiently regulate participatory processes in decision-making, which is an emerging and pressing requirement of contemporary constitutionalism and the most developed way to limit abuses prompted by emergencies. The chapter suggests that federalism represents the matrix that can inspire solutions to both issues and that can link the two. Federalism has proved overall more effective than other forms of government in allowing for a non-emergency-driven approach to crises, especially the pandemic. Therefore, federalism is a tool that significantly helps make emergency decisions more coordinated and more pluralistic, thus more legitimate. At the same time, federalism provides inspiration for developing procedural solutions for the growing demands for pluralist (participatory, inclusive, multilevel) democracy. It can bring institutional and possibly also societal participation in the governance of emergency situations, especially those that are rather predictable and do not necessarily require a dramatic, out-of-the-ordinary reaction, such as the environmental crisis. The chapter argues that the potential of federalism in providing solutions to contemporary constitutional crises is underestimated and casts some light on how this can be remedied.