THE FEDERAL STATE OF THE MEXICAN CONSTITUTION: AN INTRODUCTION TO ITS PROBLEMATIC*
Miguel CARBONELL SÁNCHEZ**
Original Text (Spanish) PDF
SUMMARY
I. Introduction. II. The distribution of material resources and the principle of competence. III. The articulation of federalism in the Constitution of 1917. IV. The reality of the federal system. V. Possibilities of change for Mexican federalism.
I. INTRODUCTION
The purpose of the present work is, in part, to present overall the main lines through which federalism is articulated in the Mexican Constitution, and on the other hand, to confront constitutional design with political reality, with the goal of showing that one and the other have not always had one to one correspondence. Finally, an attempt is made to present possible proposals to improve the system and to make it more operational in practice.
The focus of the first part is made predominantly from the theory of the sources of law, since it is from it that one can appreciate the constitutional law regimen of Mexican federalism.
The federal system was adopted for the first time in Mexico in the Constitution of 1824, which in its article 4 states that "The Mexican nation adopts for its government the form of popular federal representative republic", and in the next article the integral parts of the Federation are mentioned.
During the XIX century, Mexican federalism suffered, like almost all of the other institutions of the country, various crises of anarchy. Fiscal disarray, which produced duplication of taxes and difficulty in establishing ancillary tariffs between federal entities, like the presence of local chiefdoms, gave way to important demands to revert back from the federal model and to convert Mexico to centralism. Even the theme was an essential flag of the liberal party in its struggle against the conservatives,1 who were able to have centralism be present in some constitutional documents of the past century.2 In spite of everything, ever since the Constitution of 1857, federalism has remained one of the fundamental postulates of Mexican constitutionalism.
Although, as it is obvious, the model of the federal State was copied from the North American Constitution, in the case of Mexico, opposite of how it occurred in the country of origin of the institution, federalism did not serve to put together previous realities, and in some way dispersed, but to create decentralized entities within a country with strong centralist traditions inherited from the colonial period.3
The articulation of the Mexican republic, like a federal State, imposes a peculiar ordering of the sources of law, thus it provides to the federal entities a constitutionally guaranteed space of "normative autonomy",4 differentiated from the one belonging to the Federation.
Federalism supposes recognition of the existence of distinct forces from the central power, that are self-sustaining, and that in that virtue they reclaim their own field of juris-political action, translated —among other things— in the possibility of creating judicial norms for themselves. This is one more variable of exuberant pluralism of current societies,5 pluralism territorially defined in the Mexican case, that gives a place to the existence of a plurality of sources of law.6
Even so, federalism is not reducible to a purely judicial notion, but it is based in a special way of understanding the political association of the interior of State, which "goes beyond the frame of constitutional law".7
Federalism responds, among others, to the following three needs:8
a) To organize politics and rationally large geographical spaces, incorporating parity relations among distinct entities, and suppressing subordinate relations used in the empires and colonies of the past centuries.
b) To integrate relatively autonomous entities into a superior entity, safekeeping their own cultural peculiarities.
c) To the need to divide power to safe keep liberty.9 Such as occurs with the division of the exercise of powers in Legislative, Executive and Judicial, it is also possible to make a "territorial" division of power, that is implemented through a functional and competent division, that differentiates the possible fields of operation at each level of government.10
The importance that the territorial division of power has, in the interior of State, is illustrated with two examples, one within the same Mexican constitution and another of a foreign Constitution. The first is found in the Mexican Constitution, that defines the kind of State, among republicanism democracy, representativeness and federalism (Article 40), where the federal formula weights as much as for example, democracy. The second example, can be taken from the German Constitution, that considers the division of Germany in Länder, as important that declares that such a decision of the Constituent cannot be reformed by the reviser power of the Constitution (Article 79.3).11
In concrete in Mexico, the federalism has served and can serve with more intensity in the next years as a tempering to the presidentialism that has been propitiated from the judicial and political national systems. The federalism allows that the political parties that have lost in the presidential, legislative or federal elections to campaign and win elections in the local context and by then, they will be exercising the governmental action. They can display counteroffers that sustain future programs of action from the federal opposition.12 With the federalism, the democratic centers of decision within the State are multiplied.13
With the opposition integrated in the tasks of the government at the local level, it is able to achieve a character that is exclusive of presidentialism.14 Furthermore, with a greater number of local legislations —that today are not existent yet— the opposition parties can be conditioning the reform constitutional procedures, with all the importance that that has for Mexico.15
II. THE DISTRIBUTION OF MATERIAL RESOURCES AND THE PRINCIPLE OF COMPETENCE
The principle of normative competency is usually used in general to order the relations between the diverse centers of normative production within the federal government. Such principle "consists of delimiting the material context and to assign its regulation to a certain type of norm, in such manner that the other types of norm cannot, in principle to have any incidence about such matter".16
Thus, the normative competence creates a division of two types of material orders of the normative capacity, one the federal and the other the local. In other words it creates a horizontal surface in the distribution of power.17
This principle also indicates that each branch of power: a) has a limited field of power, and on that virtue, b) it cannot regulate more than the matters that are under its ratio; for other matters it is specified or distinct organisms are created,18 however, if the competence resides in the same organ, differentiated procedures for its exercise,19 even if in all cases the competence in favor of a concrete type of normative, excludes the rest of norms of such context of regulation, in creating in favor of the of the first an zone of material immunity;20 in consequence, it implies in last instance "a must of reciprocal respect between two norms", that are related indirectly between themselves, through the distribution of the normative capacities that the Constitution indicates.21
In historic context, the principle of competence, can be seen as the purpose to be taken away the regulatory omnipotence of the law (by then the predominant role of the central parliament) each time that this principle operates "it means that the Constitution has recognized a more ideals sources than the law, respect to certain matters: which this is another consequence of the lost of the first position, by the law in the system of sources".22
To complement the above, it can be said that the principle of competence it is not only acting in respect to two differentiated orders —federal and local— but also in acting within each one of them. Such is the case that the Constitution stipulates a reserve regarding the principle of self-regulation of the parliament,23 for the Congress of the union to regulate, through a sui generis law, its structure and internal functioning (article 70, paragraphs 2 to 5).
III .THE ARTICULATION OF FEDERALISM IN THE CONSTITUTION OF 1917
These days, one can observe many configurative varieties of federalisms within the States that have adopted it, that is hard to pinpoint to general guidelines that can identify it in an unequivocal manner. Perhaps, this is why it has been said that the federalism is a normative concept and by consequence it should be studied and understood at the light of the particular dispositions of the constitutional order.24
Moreover, it is relatively common within the constitutions that create federal regimens, that the Mexican Constitution recognize in all federative entities a common law statute, without making differentiation among them;25 without excluding that each federal entity can design, from the guidelines that the federal Constitution marks,26 a frame of action more or less wide according to it's local Constitution.27
1. Explicit faculties and implicit faculties
The Mexican Constitution embraces the federal clause in articles 73 and 124, even though the federal State law is also stated in article 40.28
In article 73, the faculties of the Congress of the Union to legislate are established. In other words the matters in which the federal authority is competent are delimited. This delimitation is not very precise, e.g. the last paragraph of the mentioned article (XXX) establishes, in the same manner than the North American Constitution (article 1, section VIII, paragraph 18), the implicit faculties to legislate (implied powers), that allow to considerably to wide the federal sphere, as in fact has occur in the original North American model.29
The implicit faculties "are the ones that the legislative power can grant o himself or to any of the other two federal powers as a necessary mean to exercise some of the same of their explicit faculties";30 their function goes in direct relation with the explicit faculties. Between the one and the other always should exist relation, since the implicit do not function in automatic manner.31
In Germany, the Constitutional Court, in spite of the fact that the Fundamental Law of Bonn does not have a disposition similar to the paragraph XXX, article 73 of the Mexican Constitution, has recognized three types of implicit faculties:
a) The ones that derive of a material connection, with other competence "we are in front of a material connection when a matter expressively confer by the Federation it cannot be reasonably regulated, without at the same time to norm other matter not expressively attributed, it is, when the invasion of contexts not conferred is an indispensable condition for the regulation of a matter that corresponds expressively to the federation".32
b) The ones that are annexed to the federal competencies (are a subtype of the ones before): are presumed to exist "when a determined function is so inseparably united to a conferred scope to the Federation, or to the Lander that wouldn't be reasonable to separate".33
c) Those which derive from the nature of things, that are based "on the unwritten principle of law that there are certain material ambits that because of their nature, can only be regulated by the Federation, since they constitute their own private affairs, gotten a priori to any private legislative competency".34
The implicit powers have not been used often in Mexico because every time that it has been needed to use of a federal faculty that was not clearly gathered in the different paragraphs of the article 73, one has come to the constitutional reform that with so many proclivity has been used in the country.35
The constitutional article 124 decrees that all the faculties that are not expressible36 conceded to the federal powers, they are "reserved" to the States.37 It is established in favor of the lasts a residual competence, theoretically wide.
Both article 73 and article 124, suppose attributive norms of competencies —norms that award power or, more wildly, norms about the juridical production—38 but they must complement with those other norms, that in spite of not granting competitions in a positive form, they prohibit the federation or the States to regulate certain matters, being constituted in some cases in material limitations to the legislative powers enunciated in the articles mentioned.39
This way, for example, article 24, in its second paragraph, establishes that "The Congress cannot dictate laws that establish or prohibit any religion".40
For its own part, the prohibitions to the states can be absolute or relative. They are absolute prohibitions those that the Constitution prevent that the states will never be able to realize and are enumerated in the article 117.41 They are relative prohibitions, those in which the performance of the federative entities is subordinated to the authorization of the Congress of the Union, dedicated in article 118. In the latter case, the authorization of the Congress —I understand that across a law frame or basic-law, if is the case, or across a decree, if it was a question of an authorization of singular and concrete character— is a condition necessary for the existence and parameter of validity of the norms that, with posteriority, dictate the federative entities.
2. Coincident and concurrent faculties
Exceptionally the Constitution prevent an alteration of the generic competitive distribution already described, to establish, in certain matters, a concurrency between the federal and state authorities —what Zagrebelsky has called "parallelism of the competencies"—42 are the so-called coincidental faculties43 or concurrent ones, that are exerted simultaneously by the Federation and by the States,44 then:
a) That exists absolute regulatory simultaneity —this is that they coexist simultaneously and in indistinct form federal and local laws in the same matter—, since it is the case of the article 117 in fine that arranges that: "The Congress of the Union and the legislatures of the States will dictate, certainly, laws directed to attack the alcoholism".
b) That such simultaneity is only partial, while the Constitution assigns some aspects of a matter to the Federation and others to the federative entities.45 This it is the case of the health, in which the Federation can legislate on "general health" (article 73, paragraph XVI) and the States on "local health" and of means of communication (article 73, paragraph XVII),46 in which the Federation legislates on general means of communication and the federative entities over local means.
c) That is the Federation, across the Congress of the Union, which regulates a matter and the federative entities, and the municipalities adjust to what is arranged by the legislation federal.47 Such legislation can prevent, among others, the following two possibilities: a) that the regulation of the matter stays at the charge completely of the Congress of the Union, and that the local authorities take charge only of its execution, and b) that the local authorities can contribute to the regulation by powers of normative creation, without prejudice of its, powers of execution. In the Mexican Constitution there can be mentioned as examples of this type, the cases of public safety (article 73, paragraph XXIII), education (article 73, paragraph XXV), urban settlements (article 73, paragraph XXIX, clause c), protection to the environment (article 73, paragraph XXIX, clause g) and in matter of religious worship (article 130, last paragraph).
The whole previous paragraph deserves a special consideration, since in one of its, modalities gathers the most representative example of so called "federalism of execution", in which the central or federal organs retains the powers of normative creation, across the Legislative Power and the members States of the Federation that carry out the execution of these norms throughout, fundamentally, of the public regional or local administration.48
So much for the case of the urban settlements, as in the case of the protection to the environment, the Constitution uses the term "concurrence" to describe the joint competency among the Federation, States and municipalities, to which justifies to my understanding that speaks of "concurrent" powers in the Mexican Constitution, in spite of the disagreement of some important sector of the doctrine.49
What is undoubted is that, in concurrent or coincidental matters, the Constitution has wanted that the authorities of all three levels of government, are those that take part in putting them in practice; it is to say, the Constituent one has estimated that, for the transcendence or the singularity of certain matters, its regulation and execution it should not stay in hands of just one governmental level, but it should be by the participation of authorities with territorial competitions of different scope; in consequence, the legislation of the Congress of the Union should provide an area of participation of the local and regional authorities. And a not merely nominal scope but effective. The determination so much of the threshold in which this scope is located, as the efficiency of the federal entities and to the municipalities, it is impossible to state a general form and to a priori. For its concretion, the concrete cases must be studied and, in the supposition of which was observed that the federal dispositions nullify the competency of the Constitution, it can be annulled by the Supreme Court of Justice of the Nation.
In Germany, respect of the cases in which the Federation must dictate frame dispositions —of reference in the article 75 of the Fundamental Law—, it is understood that such dispositions must not be self-sufficient, that is to say, there must be done in form such that are necessary of being developed by the legislation of the Länder; "to regulate the corresponding matter, the federal legislator must leave open, questions of certain transcendence for the Länder".50
3. Possible normative conflicts between the federal right and the place
An interesting question is how must be solved conflicts that are provoked between the federal and the local law, in the cases of the matters in which, as the ones enunciated in the first close, above explained, exists regulatory absolute simultaneity between both normative areas or in other different in which the federal legislation is used as base for the development of local norms.
In the first case, each one can be in front of opposite and yet to two valid norms, dictated by the respective creative organ of constitutional faculty and with different spatial area of validity (one local and other federal); it is important to underline the validity of both norms, because in the rest of normative conflicts (or pseudo-conflicts as one will see later on) that can appear between federal and the state norms, one cannot be in presence of two valid norms, but of norms that have invaded its respective material sphere of regulation and that, in consequence, are annullable for the Supreme Court of Justice of the Nation.
It is not the case now, since in the present it is the own Constitution the one that authorizes the Congress of the Union as to the local legislatures to legislate —without any other nuance or without any one being clarifier enough— over a certain matter.
An explanation to begin is needed and it is that in any formed State, at the side of the form of decentralization and differentiation of tasks and functions that have been done in each concrete case, one can not be without of a system of solution of the conflicts between norms of different area of competence —material or organic—; to say it with more clarity, with Francisco Rubio Llorente's words, "there is not theoretically (to say, for reasons of theory, but also, of course in the practice) a system of territorial delimiting of competencies that can prevent , in one way or another, without one 'clause of prevalence', is not even imaginable a system of material delimiting of competence that can work in absence of a relation of range".51
The previous having been said, it is necessary to state that the solutions in the compared law are not, not much homogeneous. This way, for example, in the Constitution of Germany, it is stated as a general rule that: "The federal law gives priority over to the right of the Länder" (article 31); later on, the same Constitution nuances that "in the field of the competing legislation, the Länder has competence to legislate while and in the measurement in which the Federation does not use its legislative power" (article 72.1).52 In Spain, the Constitution establishes that, in matters that not have not been assumed by the autonomous communities in its respective autonomic bylaws, in case of conflict between the state law and the autonomic one, it will prevail that "in everything that is not this attributed to the exclusive competition of these" (article 149.3).53
In Mexico, in the supposed eventuality that a normative conflict was taking place between the federal and the local low, in matters in which concurrence or absolute coincidence exists, it is necessary to impose the federal low, provided with a "more intense" normative power that that of the federative entities,54 even though such a opinion is not shared from part of the doctrine. This way for example, Tena Ramírez rejects the notion that the German system is applicable to Mexico; nevertheless, the author seems to refer to the case of that effectively exist a distribution of matters, without explaining which is the solution in case of the absolute concurrent powers, since it limits to indicate that, in case of conflict, there must prevail the norm that agrees with the Constitution, with which does not solved the raised problem. In terms similar to those of Tena, Jorge Carpizo supports that "In these cases (that Carpizo calls coincidental and that defines as those matters in 'that both the federation and the entities can realize for constitutional disposition and that coexist'), though the content of the norms was opposite, there is no problem, since the federal legislation does not prevail over the local, but they coexist and one will be applied or the other according to the area of validity of the norm and according to the court that is going to apply it".55
In my opinion, Carpizo's point of view does not solve the problem, since in the case of accepting it might come to which it was not applying a local law that was regulating a competing matter (even in the case in which federal regulation not exist in this matter), if one was made in a court a determination about which federal courts knew or vice versa, that could not be made use of federal dispositions relating to competing matters in local courts. In the practice, the concrete examples might be relatively abundant.
In fact, the solution I believe that it must be lightly different from the one proposed by Carpizo; it is to say, in these matters, while there should not exist a normative conflict (case in which, since already it has been said, the federal law prevails), all the courts —of any level and jurisdictional area— they must apply the norms that exist, they are federal or local, since all of them are valid. This means that, at least, the local courts will apply all the norms in competing matters, even though they have been created by the Congress of the Union56 and, besides, that the federal courts will have to apply local norms that treat on the same matters, respecting always its territorial area of validity (that of the norms it is understood).
Also, in the cases in which it is the Congress of the Union who establishes the bases of a certain matter and are develop by the federative entities, it is necessary to impose the federal law, though for reasons different from those of the previous case. Here already we would not be in front of two valid norms, but in front to a norm subordinated logically to another, since the federal legislation would act as norm on the juridical production of the local legislation, having left the Constitution, liberate the federal legislator to form the concurrence among) the different levels of government.
The contradictions in exclusive matters
If we wanted to synthesize all the previous, it can be say that the federal system concerning the sources of the law, it represents a demarcation of "material" competencies between Federation and States, creating a double normative pyramid, to use the graphical gradualistic kelsenian conception of the ordering: on the one hand, the "federal pyramid" integrated by those matters enumerated in the article 73, including the implicit powers, and for other hand, the "local pyramid" composed by the rest of matters not attributed constitutionally to the Federation.
Over both pyramids one finds, obviously, the federal Constitution57 and among them relations exists normally of "laterality". The only constitutional possible point of union or interference, are the already mentioned coincidental or concurrent powers.
If for any reason, a sector of one of the two pyramids invades the other, producing an apparent normative collision, one would be in front of a competitive unconstitutionality (it is understood that this is not applied to the cases in which coincidence or material concurrence exists), not must be applied the criterion of the most superior norm (lex superior derogat inferiori)58 or that of temporal priority (lex posterior derogat priori) as solution of the antinomy, but the principle of organic competence59 since in such a case some of the norms of the seemingly collides, would have been dictated without having constitutional powers for it.
In this situation, in reality, not even a "collision" can be produced between federal and local law, but a simple undue extension, of one of two orbits that would have to be repaired in its case for the Judicial federal Power, already is across the trial of protection or across the mechanism of the constitutional controversies of the article 105, paragraph I.
In this supposition, really, it cannot be said that this apparent normative collision exists between the federal and local law, but a simple unduly extension of one of the orbits that would have to be repaired in this case by the federal Judicial Power, either through a protection trial or through the mechanism of the constitution controversies of the article 105, paragraph I.
It is important to notice the fact that it is not required an apparent normative collision, in order that a norm that exceeds its radio of competencies to be unconstitutional, then as Ignacio de Otto remembers,60 if the Constitution reserves to a certain organ, a matter is enough for there to exists a norm that invades such a competence in order that the unconstitutionality takes place, without being necessary the existence of the norm created by the constitutional competent organ, which produces the collision with that one and with independence of the content of that one,61 backwards as how it happens with the hierarchic principle that supposes the existence of two or more opposing norms, each one of different rank.
The Supreme Court of Justice of the Nation has corroborated in its jurisprudence some of the extreme points. Such it is the case of the following thesis:
LEGISLATIONS FEDERAL AND LOCAL. BETWEEN THEM, HIERARCHIC RELATION DOES NOT EXIST, BUT COMPETENCE DETERMINED BY THE CONSTITUTION. The article 133 of the Political Constitution of the Mexican United States does not establish any relation of hierarchy between the legislation's federal and local, but in the case of an apparent contradiction between the mentioned legislations, this must be resolve by attending to what organ is competent to create this law in agreement with the system of competence that the fundamental norm establishes in its article 124. This interpretation is reinforced with the articles 16 and 103 of the Constitution, the first one indicates that the action by the competent authority is an individual guarantee, and the second one, when establishes the origin of the trial of protection if the local or federal authority acts beyond its competition constitutional.62
4. The participation of the federative entities in the federal procedures of normative creation
On the side of the major cooperation or division of competencies that can exist among the federative entities and the Federation, in most of federal States, those intervene in some stages of the creation of procedure federal.63 Certainly, constant intervention from the chambers of territorial representation, as the senate in Mexico,64 but also they are given certain specific powers that allows them to contribute with the federal power in the process of change and innovation of the national law order.
In Mexico, the federative entities have intervention in the legislative federal procedure and in the procedure of constitutional reform. In agreement with the article 71 constitutional, "The right to initiate laws or decrees to be incumbent: ...III. To the legislatures of the States". According to the article 120 of the very Constitution, the local governors must publish and to enforce the federal laws. Initiative of law and publication of the federal laws, are then the faculty and the obligation, respectively that have the federative entities —across its local Congress and of its governor— in the legislative federal procedure.
For its own part, article 135 states that to carry out a reform of the Constitution is needed, besides the approval of fourth three parts of the members of the Congress of the Union, the approval of the majority of the local legislatures.65 This power can in the future have great political relevancy, since it has been said more above, if the party that counts with majority in the federal Congress does not govern also in the majority of the federative entities. At the moment, such a situation has not produced to itself, for to that, in the practice, the federative entities have had a rather nominal role, in the procedures of constitutional reform, limiting itself to fulfill with the formality demanded for, the article 135, without debating mainly the respective initiatives of reforms —and without presenting some initiative, from then—, nor to add any change to them to the texts approved by the Congress of the Union.
5. The case of the Federal District
The case of the Federal District is different from that of the federative entities as for the allotment competencies. Before 1993, all relative to the Federal District was a competence of the Congress of the Union, in functions of legislative local organ, but from this year, the Constitution introduced its own representative organ for this territory, altering the allotment of competencies until then in force,66 the same that was reformed again in 1996.67
The article 122, first base, paragraph V, enlists a series of matters on which the Legislative Assembly of the Federal District can legislate. In the rest of matters, the competence corresponds to the Congress of the Union, but not as legislative federal organ, which would take prepared that its powers were those that are enunciate by the article 73 and not any other, but as producting organ of local legislation with open competence to any mater68 except, obviously, those who correspond to the Assembly (article 122, clause A, paragraph I).
IV. THE REALITY OF THE FEDERAL SYSTEM
The federalism, which undoubtedly is a form of State difficult to support,69 is a natural option for a country as Mexico, with enormous geographical dimensions, for not mentioning the multiple ethnic and cultural realities that coexist.70 In this context, it seems that any alternative different from the federal one would be pretty ineffective and dangerous, apart from the logical limitations of practical instrumentation that it would suppose. Nevertheless, the reality of the political system denies on a daily basis the federalist postulates.71
The federalism could not have been achieved not before not after the Constitution of 1917. Venustiano Carranza, in his speech of December 1, 1916 to the constituent deputies, recognized that:
...it has been up to today a vain promise, the rule that dedicates the federation of the States that form the Mexican Republic [...] it has been the central power the one that always has imposed its will, limiting itself the authorities of every State to being the executing instruments of the orders that come from that one... the Power of the Center have been consumed in the interior administration of an State, when its governants have not been docile to the orders of those, or only there has been allowed that in every federative Entity its is be enthroned a real caciquism, that another thing has been, almost invariably, the so called administration of the governors that the nation has seen to parade.
The federal system has broken, specifically in the post-revolutionary Mexican period, for two reason principally: a) the strictly juridical one, which has occurred across the constitutional reform of the article 73, which has been modified in almost forty occasions from 1917,72 to increase gradually the powers of the federal government in demerit of the local governments, and b) other one of rather economic nature: of not use to grant competences to the federal States, if they it does not provide simultaneously with the economic necessary means to develop effectively such attributions.
In consequence, though across the "residual" system of distribution competences in favor of the States, it might say that these count with a very wildly radio of action, the Federation, and specially the Executive,73 there has been reserved great part of the tributary income of the nation, distributing them later to the States across a distribution common fund or by charging them, route fiscal agreements of coordination.74 According to Jorge Carpizo, the lack of economic resources of the states and municipalities is the most serious problem of the Mexican federalism.75
This way, until very recent times, the federal government has had 85% of the entire public resources, the States have administered a 12% and to the municipalities the "most modest" has touched 3%.76 For 1995, the States and the municipalities had carried away obligations with private national banks, for the equivalent one to 48% of the total participation that they perceived during the year,77 which obviously provides a narrow margin of action to them. From all this it turns out to be a strong internal dependence of economic type of the local authorities respect of the central power and the corresponding assumption of this, from the tasks that those do not realize.78
The system of organization of the judicial power has not contributed too much to the consolidation of the federalism, since the organs of the Judicial federal Power, on direct functions of courts of super cassation across the trials of direct protection, can also check each and every one of the sentences that dictate the local courts of last instance. The system of double jurisdiction —federal and local— "it could not have resisted forcibly the centralized force that has characterized the historical tradition of the country".79
In its function of organ entrusted to dissolve the controversies among the constituted power, of the same level —for example, Executive vs. Legislative— or differently —for example Legislative federal vs. Legislative local—, the Supreme Court can play a determinant role for the correct functioning of the federal system, and for a correct allocation of the powers of each one of the public respective power. A constitutional important reform, in this sense, and that seems to go exactly in the mentioned direction, is that of December 31, 1994, in which the article 105 was reformed to detail the suppositions of the "constitutional controversies".80
Till now, the mechanism of constitutional controversies, which already was already in the Constitution before the reform of 1994, "it has been applied very rarely in the practice, since when there have appeared differences of juridical character, especially between among the federal government and those of some of the states, they have been solved by means of procedures and by organs of political character".81
Apart from the above, it is necessary to mention that the judicial system has contributed also to dehomogenize —and, by then to discriminate— against the population in the application of the law, since: a) to local level are observed big differences between one or another federative entity with regard to the quality of the public service of administration of justice and, b) among the judicial powers of almost all the federative entities, and the Judicial Federal Power notable disparities exist as for material means and wages of the functionaries.82
Added to previous, the Constitution provides in favor of the senate of the Republic the power to declare the disappearance of the power inside a State and to name a provisional governor, as well as to solve the political questions that arise among the powers of a States.83 In reality, this faculty of the senate has ended a discretionary use of the same, and it has been generally stimulated from the Executive Power.84
V. POSSIBILITIES OF CHANGE FOR MEXICAN FEDERALISM
How to redimensionize federalism? This is a question whose response, undoubtedly, needs of a multidisciplinary analysis that focuses the problem from optical views as important as economic, geographical, political and juridical ones. Pedro J. Frías has indicated that in view of the new role) of the Executive Power and its interaction with the local, entities "it is necessary to look for the participation of the particular States, in the core itself of the federal administration".85 One must not forget the importance of the presidentialism within the political Mexican tradition.86
The foundation of such an exigency comes given by virtue of which if the presidential government has as a characteristic the nullification or at least the deterioration of other powers, including significantly the Legislative one, the function of the representation of the federated States in the federal organs (that traditionally is realized in the high chambers, composed by the territorial representation, that is the Senate in the Mexican case) is not produced in an efficient way and with the desired results, in such a way that such a representation should also take place in the breast of the Executive Power: "The formulas for participation of the particular States can vary between the consultation and the voice and the vote in decisions, but as members of the administrative organ".87
In order to correct economic dependence, the author himself proposes three steps: a) "to strengthen the sphere of reserve of the tributes of proper collection", b) "to coparticipate in a system that assures the homogeneous quality of services, the automatic state of perception and interregional justice" and c) "to entrust the national treasure, by means of obligatory contributions, to the negative repercussions of national politics in the budgets of the States and the municipalities".88
Diego Valadés has indicated that, together with the resources, they owe of transmit also the functions,89 corroborating the idea of the narrow interdependence between both variables.
A solution probably more traditional can be it of involving of narrower form to the senate with its role of Chamber of territorial representation, that is to say, to turn to the senate in a factor of balance of power among the central State and the federative entities, increasing the presence of the above mentioned in that one.
In concrete, it can be interesting to take as an example the Regulation of Spanish Senate, in where there has been created "General Commission of the Autonomous Communities" (article 49.3),90 which has wide powers in topics related to the territorial autonomies (article 56). The possibility stands out, among others, of that the presidents of the different autonomous communities or someone of the members of its respective Councils of Government can intervene in the meetings of the mentioned Commission (article 56 bis 2.2); of fact, the Commission can meet by request of the Councils of Government of the Communities (article 56 bis 3).
The trigger effect that would have the power to listen to the governors of the federative entities or to the members of its of cabinets in the Senate —where one could debate before national, and not merely local, public opinion, topics of interest for the relation State-federative entities could help to reinforce the presence of these in the design of the political public national ones, as well as to improving the dialogue inside the own senate, which of this form would recover a bit the void representation that today the federative entities have, in the legislative organ of the central State.
Other offers happen for the major approximation to the cooperative federalism,91 in substitution of the basically dual federalism that exists at present, that partly already has been adopted in diverse constitutional reforms, which have introduced a major number of competing matters in article 73,92 or for a non territorial federalism that allows to take in the ethnic diversity of the country.93
As for the improvement of the homogeneity, among the federative entities, and especially as measurement to improve the service of administration of justice, it would be good to regulate of unitary form certain key matters in the civil living together. I refer in concrete to the civil and penal legislation, and to its respective procedural complements. To have in Mexico 32 civil codes, 32 penal codes and some other procedural codes, has produced a normative—territorial tangle in which it is very difficult, but impossibly, to be orientated. It provokes that in the practice appear cases really absurd and difficult to understand, how, for example, the fact that a conduct is considered to be criminal in a federative entity, and not to it is in the neighboring entity, with to which the same conduct has very different effects, depending, sometimes, on a small territorial oscillation of the person who carries out her. And the examples can multiply, not only in penal matter.
The unification of the mentioned codes would not reduce the federalism, and the autonomy of the States if, for example, its application was taking charge to the jurisdictional local orders. What must occupy first place is the clarity of the legislation, which is a value that in countries as Mexico, must be had enclosed more present that in others, so any technical-juridical unnecessary complication, occurs revert to the detriment of those social strata that less I access they have to good services of juridical assistance; such strata, surplus to say it, they identify fully with the people of fewer resources.
Let us not forget that, in its essence, the federalism supposes an attempt for rationalizing the power, to which does not mean to lead to end a competitive allotment but, especially, to put all the structures of the power to the service of the citizen, to its scope. Though it seems to be paradoxical, the Mexican federalism —and the people, last reason of being of the institutions— would result very benefited with a centralizing process, as that it implies granting powers to the Federation in the mentioned matters.
A very important route of strengthening and recognition of the geographical-political diversity of the country, complementing to previous, it can be it of providing with major means and resources to the municipalities, which though they are very well regulated theoretically by the article 115 constitutional, they do not play a relevant role inside the institutional studding of the country, except any notable exceptions. Maybe it would be necessary to restate the terms in which the principle of subsidiary that must exist in any federal State; this is, to understand that "that one that they can attack effectively the smallest and subordinated communities should not be task of the widest and self-sufficient community".94
To political level, the major autonomy of the States, with regard to the center, happens for a reform electoral, similar to which has been implemented for the Federation. The purpose is to create a trustworthy system of elections, and that provides certainty in the results, so that the conflicts are avoided in the post-electorals that so many presidential illegitimate interventions were present in the period 1988-1994.95
If adjoin the previously stated, once could create a net of local political parties strongly representative in some States (in a similar way to how nationalist parties in Spain operate); one could diminish the centralist interventionism in local political questions.96 Jorge Madrazo coincides with the need to create and to strengthen the local or regional political parties in Mexico; said author indicates that local political parties count on relative advantages regarding the parties of national scope, "for having a better possibility to understand the problems of the state and of the municipality, and to have in every way a closer relationship with the electors".97
These are only some among many proposals that can be done on the topic, which has been and continues to be object of constant debates, both in doctrinal headquarters and in speeches and political proclamations.
Notes
* Translated by Diana Hernández Holtzman.
** Researcher at the Legal Research Institute.
1 Tena Ramírez, Felipe, Derecho constitucional mexicano, 24th ed., Mexico, 1991, pp. 110 and 111.
2 See the historical synthesis that Burgoa, Ignacio, for example, realizes, Derecho constitucional mexicano, 7th ed., Mexico, 1989, pp. 421 and ss.
3 Tena Ramírez, Derecho constitucional mexicano, cit., p. 112 and Carpizo, Jorge, "Sistema federal mexicano", Los sistemas federales del Continente Americano, Mexico, 1972, p. 469. The explanation of the types of processes in order to arrive at federalism, that is to say, that which divides the unity in order to create decentralized entities, and that which unites political-geographic realities previously disperses; one can see this in Friedrich, Carl J., Gobierno constitucional y democracia, Madrid, 1975, pp. 386 and ss.
4 Pizzorusso, A., "Sistema delle fonti e forma di stato e di governo", Quaderni costituzionali, no. 2, 1986, pp. 231 and 232.
5 Cfr. in general, Giugni, Marco G., "Federalismo e movimenti sociali", Rivista Italiana di Scienzia Politica, Bologna, no. 1, 1996, pp. 147-170.
6 Zagrebelsky, Gustavo, Manuale di diritto costituzionale. II sistema delle fonti, 2nd ed., Turin, 1993, p. XI; Pizzorusso, A., "The Law Making Process as a Legal and Political Activity", in Pizzorusso, A. (ed.), Law in the Making. A Comparative Survey, Berlin Heidelberg, 1988, pp. 33, 64, 65, 85 and 86. The Relation Among Federalism and Democracy in Friedrich, op. cit., pp. 392-398.
7 Burdeau, Georges, Tratado de ciencia política, t. II: El Estado, vol. II: Las formas de Estado, Mexico, 1985, p. 181. The same author adds that "The federal idea searches to prevail an association of groups... the federal conception of authority as the corollary to a federal conception understood as the articulated whole of groups of all orders", loc. cit.
8 García-Pelayo, Manuel, Derecho constitucional comparado, 7th ed., Madrid, 1993, pp. 216 and 217.
9 Cfr. Vogel, Juan Joaquín, "El régimen federal de la Ley Fundamental", in Benda et al., Manual de derecho constitucional, ed. and trans. by Antonio López Pina, Madrid, 1996, pp. 622 and 623.
10 "It's meaning and essence (of the federal State) consists of the preservation of regional diversity —that there where it may exist historically determined—, within the largest possibilities of committing to the common good —in summary, in that of decentralization—. The implanting of the federal State demands an attribute different from responsibility, a delimitation of competencies concerning determined material in favor of autonomous deciding individuals", Vogel, op. cit., p. 621.
11 Alberti Rovira, E., Federalismo y cooperación en la República Federal de Alemania, Madrid, 1986, pp. 67 and ss.
12 "Federalism permits that undone parties at the national level acquire governmental responsibilities in the inferior levels, they integrate themselves into the system, they reduce their conflict and frustration amidst of failure, they weaken their antisystemic potential, they assume a position more dynamic than static, they govern instead of only opposing themselves and acquiring a sense of complexity about the social problems and governmental duties", Lujambio, Alonso, Federalismo y congreso en el cambio político de México, prologue of Diego Valadés, Mexico, 1995, p. 23; in a similar fashion, Zippelius, Reinhoid, Teoría general del Estado, 2nd ed., trans. by Héctor Fix-Fierro, Mexico, 1989, p. 357.
13 Vogel, op. cit., p. 622.
14 Concerning this character, Linz, Juan J., "Los peligros del presidencialismo", en Diamond, Larry y Plattner, Marc F., El resurgimiento global de la democracia, trans. by Isabel Vericat, Mexico, 1996, pp. 107-109.
15 Lujambio, op. cit., p. 24.
16 Díez Picazo, L. M., "Competencia", Enciclopedia Jurídica Básica, Madrid, 1995, p. 1183.
17 Zagreblesky, Manuale..., p. 66.
18 A typical example that can be the divider of the federal State's own material, in the way it is analyzed next.
19 For example, one can mention the case of organic laws and the Spanish order. Some authors, such as J. A. Santamaría Pastor, situate the principle of specialty procedure separated from the principle of competition, Fundamentos de derecho administrativo I, Madrid, 1991, pp. 320-322, if it appears more of a variable of this than an autonomous principle, as Díez Picazo implies, "Competencia", op. cit., p. 1185.
20 Cfr. Ruggeri, A., Gerarchia, Competenza a qualitá nel sistema costituzionale delle fonti normative, Milán, 1977; Crisafulli, V., "Gerarchia a competenza nel sistema costituzionale delle fonti", Rivista Trimestrale di Diritto Pubblico, 1960, pp. 775 and ss. Crisafulli signals that when a fountain has a designated regulation of determined material, it does not "prevail" atop of the others; instead, no "prevail" it "excludes" theses of such regulation. The idea of the competitive immune system is taken from Santamaría Pastor, op. cit., pp. 319 and 320.
21 Balaguer, Fuentes del derecho, Madrid, 1990, t. I, p. 150. One must not forget that "the assigning of the environment of regulation or competitive division between two —or more— types of norms, should be established by a third norm, that is, by a secondary norm or a norm atop of the legal production", Díez Picazo, "Competencia", op. cit., p. 1184.
22 Zagrebelsky, Manuale..., p. 66; see also in the same way and more broadly, Crisafulli, Vezio, Lezloni di diritto costituzionale, Padova, 1984, t. II, vol. 1, pp. 202-205.
23 In order to not over-discuss previous chapters, see Zagrebelsky, Manuale..., cit., pp. 195 and ss.; Cano Bueso, Juan, "El principio de autonormatividad de las cámaras y la naturaleza jurídica del reglamento parlamentario", Revista de Estudios Políticos, Madrid, no. 40, 1984, pp. 85-99, among others.
24 Vogel, op. cit., p. 614.
25 As Vogel indicates, "a federal Constitution must guarantee that the exiting political structures in the Federation and member States be homogenous, and that also they be the States themselves, with the end of avoiding antagonisms that put the national security in grave danger", op. cit., p. 627.
26 See article 116 of the Mexican Constitution; cfr. also, for example, article 28 of the Fundamental Law of Bonn.
27 García-Pelayo, Derecho constitucional comparado, cit., p. 233.
28 "It is the Mexican population's will to constitute a representative republic, democratic, federal, composed of free and sovereign States in all that concerns an interior regimen; but unified in an established Federation according to the principles of this fundamental law".
29 See Loewenstein, Karl, Teoría de la Constitución, 2nd ed., Barcelona, 1976, pp. 360 and ss.
30 Tena Ramírez, op. cit., p. 116. Tena Ramírez himself reminds us that one can only give an implicit faculty if the following requirements are united: "1st. the existence of an explicit faculty, that by itself cannot be exercised; 2nd. the relation of means dealing with its end, among the implicit faculty and the exercise of the explicit faculty, without the first one could not reach the use of the second; 3rd. the congress's recognition of the Union's necessity of the implicit faculty and its giving by the same Congress to the Power that it needs from it", ult. loc. cit.
31 Schmill, Ulises, El sistema de la Constitución mexicana, 2nd. ed., Mexico, 1977, p. 268.
32 BVerfGE 3, 407 (421) cited by Vogel, op. cit., p. 644.
33 BVerfGE 8, 143 (149) cited by Vogel, ult. loc. cit.
34 BVerfGE 11, 89 (98 ss.) cited by Vogel, idem.
35 Cárdenas, Jaime F., Una Constitución para la democracia. Propuestas para un nuevo orden constitucional, Mexico, 1996, p. 205; Carpizo, Jorge, La Constitución mexicana de 1917, 8th ed., Mexico, 1990, p. 251; Carbonell Sánchez, Miguel, "La eficacia de las normas constitucionales en México: notas para el estudio de una disfuncionalidad", Jueces para la democracia. Información y debate, Madrid, no. 25, march, 1996, p. 111.
36 The term (as in the adjective) "expressing" cannot be found, in fact, in the United States Constitution.
37 Carpizo, "Sistema federal...", cit., pp. 480 y ss.
38 Guastini, Riccardo, "In tema di norme sulla produzione giuridica", Analisi e diritto 1995. Ricerche di giurisprudenza analitica, Turín, 1995, pp. 303-314. See the translation from Italian by Miguel Carbonell, in various, Boletín Mexicano de Derecho Comparado, Mexico, new series, year XXX, no. 89, May August, 1997, pp. 547-557.
39 Carpizo, La Constitución mexicana de 1917, cit., pp. 252 and 253.
40 It is necessary to remind us that, though not to say expressly, the fundamental rights constitute in itself limitations of material character to the powers of normative creation of the State. Nevertheless, with the mentioned example, I want to refer only to those cases in which the limitation is explicit and is focused on a form of normative creation in concretely (though the prohibition of the article 24 it is not necessary to understand it like directed only to the Congress of the Union, but to any organ of juridical production in agreement with the disposition by the first paragraph of the same one; though this already is another topic).
41 Carpizo, La Constitución mexicana de 1917, cit., p. 253.
42 Zagrebelsky, Manuale..., p. 67.
43 Carpizo, La Constitución mexicana de 1917, ult. loc. cit.
44 Tena Ramírez, op. cit., p. 121. This phenomenon seems to answer to the need to articulate a federalism more "cooperative" than "dual", and has been imposed also in the United States; see Laslovich, Michael J., "The American tradition: federalism in the United States", in Comparative Federalism and Federation. Competing Traditions and Future Directions, London, 1993, p. 189.
45 Carpizo does not locate them inside the coincidental powers, but he names them "coexistent", ult. loc. cit. For me a substantial difference does not exist, not terminologically, not of constitutional differentiated regulation, which justifies a division in these terms, though I do not stop admitting that both can be equally suitable.
46 Tena Ramírez, Derecho constitucional, p. 123. Carpizo, "Sistema federal mexicano", cit., p. 486.
47 Apart from the own considerations of the Mexican system, in this case, the laws of the federal Parliament need to be "general", since only from the dialectical general-singularity the terms legislation and execution can be understood; véase Cabo, Carlos de, "Estado social de derecho y ley general", Jueces para la democracia. Información y debate, Madrid, no. 23, 1994, p. 39.
48 Cfr. articles 83 to 91 of the German Constitution.
49 Carpizo, La Constitución mexicana de 1917, p. 255.
50 Vogel, op. cit., p. 643.
51 "Rango de ley, fuerza de ley y valor de ley" in the book La forma del poder (Estudios sobre la Constitución), Madrid, 1993, p. 332.
52 Cfr. the other rules about exclusive and concurrent legislation in the articles 70 and ss. of the same Constitution. The explication of the article 31 in Vogel, op. cit., pp. 631 and ss.
53 Parejo, Luciano, La prevalencia del derecho estatal sobre el regional, Madrid, 1981; Otto, Ignacio de, Derecho constitucional. Sistema de fuentes, 2nd ed., Barcelona, 1989, pp. 281 and 282, among others.
54 The concept of "major intensity" is taken of Zagrebelsky, Manual..., p. 67.
55 See Carpizo, Jorge, "La interpretación del artículo 133 constitucional", Estudios constitucionales, 3rd ed., Mexico, 1991, p. 22, note 45; id., La Constitución mexicana de 1917, cit., p. 256.
56 In Germany, the courts of the Länder apply both the federal and the regional law; Vogel, op. cit., p. 661.
57 The constitutional article 41 recognizes expressly, in the first paragraph, on having said that the local constitutions "in no case will be able to overcome the requirements of the federal agreement". The supremacy of the Constitution with regard to the federal law and, in general, to the rest of the ordinances, it is gathered in the constitutional article 133.
58 Díez-Picazo reminds the principle of hierarchy only operates there where there is identity of matter, "Competencia", op. cit., p. 1184. In Germany, the rule of the prevalence of the federal law over the law of the Länder, is provided on the article 31 of the Fundamental Law of Bonn, only is applied when the straight federal correspondent law is valid; this implies that the Constitutional Court, in case of knowing about a supposed conflict relative to the case in matter, it should first to examine nothing if "the federal regulation in question has been approved in exercise of attributed competitions, and if materially is compatible with the fundamental law", Vogel, op. cit., p. 633.
59 Cfr. besides what is exposed in the paragraph "La distribución de materias y el principio de competencia", Franco, Amedeo, "I problemi della completezza dell'ordinamento", in Modugno, Franc, Appunti per una teoria generale del diritto. La teoria del diritto oggettivo, Turin, 1994, p. 151. The author notes that the criterion of competition needs to be formed in a normative text, that is to say, in a positive, not logical criterion. See also Zagrebeisky, Manual ..., pp. 48-48 and 66-67, among others. For the case of Mexico, Carpizo, "Sistema federal...", op. cit., pp. 502-504.
60 Derecho constitucional. Sistema de fuentes, p. 91.
61 Díez-Picazo, "Competencia", op. cit., p. 1185.
62 Appendix of the Semanario Judicial de la Federación 1917-1995, Mexico, t. I, 1995, p. 185.
63 In general, is common in the federal states a certain degree of reciprocal influence between the Federation and the federative entities, as is noted by Vogel, op. cit., p. 636.
64 It is necessary to remember that in Mexico the senators are not direct mandatories of the federative entities, but its representatives, for to which they are not submitted to imperative or any mandate. For the German case, Vogel, op. cit., p. 629.
65 The participation of the federative entities in the procedure of constitutional reform is a specific characteristic of the federal State; Lucas Verdú, Curso..., cit., vol. II, p. 362, though in other types of State, the regional entities also take part in the constitutional reform. For example, in Spain, the autonomous communities have three momentums to take part in this procedure of normative creation: a) they can send to the table of the House of the Congress (Table of Deputies), initiatives for constitutional reform in order that could be consider in mind (articles 166 and 87.2 of the Spanish Constitution, and 126 and 127 of the Regulation of the Congress of Representatives (Deputies); b) it can provoke a summons for a referendum, for the approval of a reform, with this purpose gathering a one tenth of the members of the Senate (percentage that is equivalent to little more than the half of the senators designated by the autonomous communities); c) it can enforce the limits of the constitutional reform, to force to realize a reform through the difficult route of the article 168, if it was considered that with such a reform one affects the essential nucleus of the autonomy, consecrated by the article 2 of the Constitution. On all these extremes, cfr. Trujillo, Gumersindo, "Homogeneidad y asimetría en el Estado autonómico: contribución a la determinación de los límites constitucionales de la forma territorial del Estado", Documentación administrativa, Madrid, nos. 232-233, October of 1992-March of 1993, p. 113.
66 Some issues regarding such reform can be seeing in Cárdenas, Jaime F., "Reflexiones sobre la reforma política al Distrito Federal", Actualización jurídica, México, 1994, pp. 21 and ss.; about the double nature of the Congress of the Union, as federal and as local organ, see Burgoa, Ignacio, Derecho constitucional mexicano, cit., p. 644.
67 Diario Oficial de la Federación of August 22.
68 In the matter, the Supreme Court supported, before the reforms of 1993 and 1996, the following thesis: "CONGRESS OF THE UNION. AREAS OF LEGISLATIVE COMPETITION. Our constitutional organization denotes for the Congress of the Union a double legislative competition, which include, on one hand, the general regulation for the whole country and which is in itself federal, and for other one, relative to the District and federal territories, that is of local nature and it is alike the one that corresponds to the legislatures of the states. It pertains to the Congress of the Union to respect the limits of the two areas, so that it might not exercise its powers of local legislator, invading its own federal sphere, not vice versa, all this in agreement with the article 124 of the Constitution, which delimits the zone reserved to every jurisdiction", Semanario Judicial de la Federación, 6th epoch, vol. 80, p. 18.
69 Madrazo, Jorge, "Federalismo y partidos políticos locales en México", Reflexiones constitucionales, Mexico, 1995, p. 109; Vogel, op. cit., p. 621.
70 See Garzón Valdés, Ernesto, "Pluralidad étnica y unidad nacional: Consideraciones ético-políticas sobre el caso de México", Derecho, ética y política, Madrid, 1991, pp. 911-942.
71 Carbonell, "La eficacia de las normas constitucionales en México...", cit., p. 114.
72 Valencia Carmona, Derecho constitucional mexicano a fin de siglo, México, 1994, pp. 66 and 303-307 (the last pages about the reforms to the federalism in general); Carpizo, "Las reformas constitucionales en México", Estudios constitucionales, cit., p. 315.
73 Carpizo, El presidencialismo mexicano, 9th ed., Mexico, 1989, p. 26.
74 See the articles 26, third paragraph; 73, fraction XXIX in all its clauses, and 131 constitutional ones, as well as Gamas Torruco, J., "Hacia un nuevo federalismo", Los grandes problemas jurídicos. Recomendaciones y propuestas. Estudios jurídicos en memoria de José Francisco Ruiz Massieu, Mexico, 1995, pp. 90 and 91.
75 Carpizo, "A manera de prólogo", in Cárdenas, Una Constitución para la democracia…, cit., p. XXI. In general, Vogel writes that "the constitutional regulation of the financial legal authority, of the budgets, of the fiscal regime and of the assignment of income and expenses, constitutes one of the nuclei of any federal order, at the parallel that an unequivocal indicator of the real distribution of the power and of the influence between the global State and the members States", op. cit., p. 665.
76 Meyer, Lorenzo, "Las presidencias fuertes. El caso de la mexicana", Revista del Centro de Estudios Constitucionales, Madrid, no. 13, September-December, 1992, p. 60; Cornelius, Wayne A. and Ann L., Craig, Polytics in Mexico: An Introduction and Overview, San Diego, 1988, pp. 16 and ss.
77 Merino Huerta, Mauricio, "El federalismo y los dineros", Nexos, no. 210, Mexico, June, 1995, p. 16.
78 "There is internal dependence because in some States and regions poor and impoverished for certain political national, it is the central power that should secure a minimum well-being... The dependency is economic when distribution of income and allocation of resources does not assure the autonomous and coordinated exercise —not subordinate— of the local entities", Frías, Pedro J., "El predominio del Poder Ejecutivo en América Latina. El proceso en algunos Estados federales", El predominio del Poder Ejecutivo en Latinoamérica, Mexico, 1977, p. 261.
79 Various authors, A la puerta de la ley. El Estado de derecho en México, Mexico, 1994, p. 59. On the case of the United States, Laslovich, Michael J., op. cit., p. 199.
80 See Carpizo, Jorge, "Reformas constitucionales al Poder Judicial federal y a la jurisdicción constitucional, del 31 de diciembre de 1994", Boletín Mexicano de Derecho Comparado, Mexico, no. 83, 1995, pp. 830-835, and Cárdenas, Una Constitución para la democracia…, cit., pp. 209 and 210.
81 Fix-Zamudio, Héctor, Introducción al estudio de la defensa de la Constitución en el ordenamiento mexicano, Mexico, 1994, p. 54.
82 Various authors, ibidem.
83 Article 76, fractions V and VI; Carpizo, "Sistema federal...", op. cit., pp. 509-515. The reasons why such fraction should be reformed in Cárdenas, Una Constitución para la democracia…, cit., pp. 208 and 209.
84 Carpizo, El presidencialismo…, cit., p. 198.
85 Frías, Pedro J., op. cit., p. 281.
86 Cfr. Carbonell Sánchez, Miguel, "Presidencialismo y creación legislativa", in various authors, Ensayos sobre presidencialismo mexicano, México, 1994, pp. 135-187.
87 Frías, Pedro J., op. cit., p. 282.
88 Idem. In The United States, where the States also confront economic difficulties, it has been proposed a not precise return to the "first beginning" of the federalism, to solve the deficits and the obligations of them, Laslovich, op. cit., pp. 195 and 196.
89 "Prólogo", in Lujambio, Alonso, op.cit., p. XIV; in the same sense Gamas, Torruco, op. cit., pp.87 and 89. Though guessed right enough, this argument does not seem to bear in mind that to whom the most wide radio of action belongs in Mexico —without counting the tributary area, obviously is to the States, not to the Federation (according to the distribution of competencies of the constitutional articles 73 and 124 that already has been explained), for to that the goal to obtaining is it of authorizing "attribution of competitions" with "disposition of resources", without for it is necessary, it seems to me, to modify the current system of competitive distribution. Some offers of change to the constitutional system of distribution of legislative powers as for Taxes, can turn in Mijangos Borja, Ma. de la Luz, "Federalismo fiscal en México: la necesidad de redefinir el régimen de facultades constitucionales en materia fiscal", Boletín Mexicano de Derecho Comparado, no. 84, September-December, 1995, pp. 1075-1090.
90 For the "ordinary" commissions of the Mexican senate, see the article 78 Ley Orgánica del Congreso General de los Estados Unidos Mexicanos.
91 Alberti Rovira, op. cit., pp. 343 and ss.; Vogel, op. cit., pp. 666-669.
92 Valencia Carmona, Derecho constitucional..., cit., pp. 298-301.
93 Cárdenas, Una Constitución para la democracia…, cit., pp. 212 and ss., and Gamas Torruco, op. cit., p. 87.
94 Vogel, op. cit., p. 623.
95 Lujambio, op. cit., pp. 48 and 49. An important step in the mentioned sense has occurred, at least formally, with the constitutional reform published on August 22, 1996, specially for what the changes introduced in article 116.
96 On the relation between political parties and federalism, Friedrich, op. cit., pp. 394 and 395, the parallelism that exists in the federal countries is distinguished, between the organization of the parties and the governmental organization itself.
97 Madrazo, Jorge, "Federalismo y partidos políticos locales en México", Reflexiones constitucionales, cit., p. 115.
