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The notion of constitutionalism and federalism as principal devices for limiting the power of government is central to F. A. Hayek’s political philosophy. A number of political scientists have recently criticized Hayek’s (as well as J. M. Buchanan’s and B. R. Weingast’s) reasoning on this subject for its presumed “neoliberal bias.” This paper reviews this critique and takes it as a challenge to clarify certain ambiguities in Hayek’s – and, more generally, in liberal – accounts of constitutionalism and federalism.

American federalism permits the states a good deal of latitude for action, and, at the same time, the federal government can exercise control through both mandates and the use of its financial powers. During the COVID-19 pandemic, the federal relationship was strained not only because of the sheer magnitude of the crisis but also because of political conflicts between the federal government and some of the states. During the Trump administration, the federal government initially denied the importance of the pandemic, and then (except for encouraging the development of vaccines) did little to support the states or citizens in fighting the virus. The Biden administration, on the other hand, was active in distributing the vaccine and in supporting other responses to the pandemic. The pandemic also exposed the underlying weaknesses in the public health system of the United States and the extent to which years of conflict between levels of government have reduced effective cooperation, even in times of crisis.

Brazilian federalism was important in the political game of combating the pandemic for three reasons. First, Brazil's public health system depends heavily on intergovernmental relations between Union, states, and municipalities because there is a policy portfolio based on federative cooperation. Second, the subnational governments' autonomy to act against COVID-19 was constantly questioned by the Federal Government – the conflict between the President and governors was a key piece in all health policy. Finally, states and local governments were primarily responsible for policies to fight against pandemic, but the absence and/or wrong measures taken by the Federal Government (such as the delay in purchasing vaccines) generated intergovernmental incoordination, increased territorial inequality, and reduced the effectiveness of subnational public policies, especially those linked to social isolation. In this context, Brazilian federalism played a dual role in the pandemic. On the one hand, the federative structure partially succeeded in averting an even worse scenario, mitigating the impact of mistaken presidential decisions. The role of subnational governments, especially of the states, was critical as a counterweight to federal decisions. On the other hand, the President actively acted against governors and mayors and, above all, sought to weaken intergovernmental articulations within the Unified Health System (SUS), the federative model designed three decades ago. One could say that the federative actors, such as the Supreme Court (Supremo Tribunal Federal – STF) and subnational governments, were the main obstacles for the Bolsonarist antiscientific agenda. The success of this reaction to President Bolsonaro's negationist populism was partial, but the results of the fight against COVID-19 would have been much worse without these federalist barriers.

If intergovernmental relations are necessary in normal times, it should be even more required to face complex intergovernmental problem (CIP) as the COVID-19 pandemic. However, collaboration between governments depends on institutional rules as well as on political will. To discuss this issue, the analytical model is based on two dimensions: institutional design and political agency. As for the first dimension, since COVID-19 pandemic is considered as a CIP, three aspects are relevant when discussing how federations can organize the coordination between different levels of government: autonomy of subnational governments, mechanisms of coordination, and policy portfolio. As for political agency, the performance of political leadership (national presidents and governors) will be analyzed. The possibility of sharing collective goals across the federation is also a consequence of the political agency that takes place within the institutional systems of each federation. In short, it seeks to analyze the relationship between institutional design and political agency to deal with this CIP in five American federations.

It is useful to provide a context for the elaboration of this argument by referring to the historical and intellectual roots of Nigerian federalism, the nature of Nigeria's ethnic mosaic, and the influence or impact of ethnicity on the architecture of Nigerian federalism. The foundational or theoretical building block of Nigerian federalism was and continues to be ethnic, as opposed to geographical, diversity. The artisanal design and construction of this ethnicized federalism was informed by the imperative of elite accommodation initially between the departing British colonial administration and the emergent leadership of the inheritance elite and thereafter, at various times between 1960 and the present time, among the political leadership of the various fractions of the politically significant and mobilized ethnic groups (Jinadu, 1985, 2002).

This chapter analyzes governmental responses to the COVID-19 pandemic in a highly decentralized federal country. Canada has a decentralized approach in many policy areas, including health care, in which provinces are the primary decision-makers and service providers. This decentralized health-care system allowed provinces to respond according to regional and local contexts and needs. The capacity building and the policy learning related to previous crises and horizontal coordination were key to policy responses to the pandemic. Moreover, unlike other countries, Canada did not centralize decisions throughout the pandemic, and did not reinforce competition and uncoordinated actions. The federal government also has had a central role coordinating COVID-19 policy responses. Nevertheless, Canada faced some challenges stemming from the lack of uniformity across the country, especially related to regional and local restrictions, enforcement mechanisms, testing, and travel restrictions.

This chapter addresses commentary about constitutional law and politics in this current era of a conservative domination of the judiciary.¹ Its primary concern is the different ways in which a working majority on the Court and its judiciary of appointees by Presidents Reagan, George H. W. Bush, and George W. Bush might be conservative,² and the different ways in which domination might take place.³ The frame for the chapter is what I call an “indifference thesis” for analyzing constitutional law and politics. Stated boldly, the thesis is that there should be a commentary distinguished by an interpretive attitude that distrusts, and intentionally resists, analysis based on preconceived notions about the strengths and weaknesses of any constitutional law and politics, be it conservative or left-liberal.⁴ Perhaps, to many readers, an indifference thesis for commentary appears methodologically odd, if not politically perverse. Therefore, the first order of business is to try to make the thesis less odd and perverse by explaining its provenance and attributes.⁵