On Paper, Spain Is Ready for Showdown With Catalonia
Spain’s Prime Minister Mariano Rajoy is playing with fire. Over the weekend, he announced he would invoke a never-used provision of the Spanish constitution to remove the elected leaders of Catalonia from office because of their support for Catalan independence.
The provision, with antecedents going back to the Holy Roman Empire, is designed to avoid fundamental conflict between federal states and a central government. Had the U.S. Constitution included a similar rule, it might have helped avert the Civil War. But historically, invoking the right to put down a rogue state also poses a grave danger to federalism and even democracy itself, as it did when Germany last took a similar step, in 1932.
Article 155 of the Spanish Constitution of 1978 sounds straightforward enough. The first part says that if one of Spain’s “self-governing communities” like Catalonia “does not fulfill the obligations imposed upon it by the constitution or other laws,” then the national government, with the approval of a majority of the Senate, may “take all measures necessary to compel the community to meet said obligations.” 1
That fits the current situation. As interpreted by the Spanish courts, the constitution doesn’t allow for Catalonia’s leaders to declare an independence referendum or demand independence.
The second part of the article says that the national government may “issue instructions to all the authorities of the self-governing communities.” It’s not completely clear what “issue instructions” means. You can imagine the argument that it doesn’t empower removal of the authorities. Yet the “take all measures necessary” phrase from part one would seem to give the national government wide discretion to do whatever it thinks needs to be done.
The drafters of the 1978 constitution didn’t come up with Article 155 on their own. They did what constitutional drafters have done for centuries: They borrowed the language from another constitution.
Specifically, the language of Article 155 tracks Article 37 of the basic law of the Federal Republic of Germany, enacted in 1949 while West Germany was still under the sway of postwar occupation forces. Like the Spanish provision, the German one has two parts, one allowing “necessary steps to compel” a state that has failed “to comply with its obligations” under the constitution or federal law, the other conferring the right to “issue instructions.” 2
What’s perhaps most fascinating about the German Article 37 is its title: “federal execution.” This phrase, which describes the power of a federal government to force one of its component states to follow the rules, itself harks back to a very famous -- and very old -- German constitutional idea. “State execution” (in German, “reichsexekution”) goes back at least to one of the most important constitutional proto-conventions in Western history, the Diet of Worms of 1495. 3
The 1495 meeting was looking for a fundamental reform of the Holy Roman Empire. You remember Voltaire’s line about how it wasn’t holy, nor Roman, nor an empire? Part of the problem was that the component states didn’t listen to the central authorities. The Diet approved a reform that allowed the emperor, with approval from one of the imperial councils, to execute judgment against actors who broke the imperial peace.
Thus born, state executions happened periodically through German constitutional history, asserting (in theory at least) the authority of the center over the periphery.
James Madison, in designing a federal constitution for the U.S., believed that the ultimate power to resolve state-national disputes had to exist somewhere in the Constitution. To his frustration, the Philadelphia convention in 1787 repeatedly rejected his proposal to give Congress a veto over state actions, including state constitutional violations. It took the Civil War and the enactment of the 14th Amendment to clarify that Congress could require states to follow the Constitution. It wasn’t until the 20th century that the Supreme Court made itself into the final arbiter of such disputes.
But taken too far, state execution can break federalism and harm democracy. The most notorious example came in 1932 in Germany.
Chancellor Franz von Papen relied on the state execution provision of the sadly insufficient Weimar constitution -- invoked not by a majority of parliament but by emergency decree of aging president Paul von Hindenburg -- to nationalize all power in the state of Prussia, whose Parliament was left of center. The so-called Preussenschlag, or Prussian coup, marked a stage in Germany’s slide toward totalitarianism.
The Prussian coup demonstrates the risks for Spain of removing the whole Catalan government. Federalism is a delicate balance. True, the Catalan government violated the letter and spirit of the Spanish constitution by toying with a declaration of independence. But if Rajoy goes too far in retaliation, the very idea of self-governing communities may evaporate.
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The Article 155 power also extends to situations where the community “acts in a way that is seriously prejudicial to the interests of Spain.” But that aspect would not have to be invoked since by calling the referendum and (sort of) declaring independence, Catalonia’s leaders refused to follow the Constitution as applied by the Spanish courts.
(1) If a Land fails to comply with its obligations under this Basic Law or other federal laws, the Federal Government, with the consent of the Bundesrat, may take the necessary steps to compel the Land to comply with its duties.
(2) For the purpose of implementing such coercive measures, the Federal Government or its representative shall have the right to issue instructions to all Länder and their authorities.
Disambiguation for geeks: This isn’t the same Diet of Worms as the more famous Diet of 1521, which called Martin Luther a heretic and attacked Protestantism. But hey, you just got to read the words Diet of Worms in Bloomberg. So that happened.
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Stacey Shick at email@example.com