Eastern Europe was not immune to such trends.  Seven years after the Magna Carta, the Hungarian nobility forced their extravagant King Andrew II to issue the Golden Bull granting the nobility greater powers.

A series of dynastic shifts in the three premier East European monarchies of Bohemia (Přemyslid to Luxembourg to Jagiellon) , Hungary (Árpád to Angevin to Luxembourg) and Poland (Piast to Angevin to Jagiellon) caused a steady shift of royal power to the nobility (and as the list shows the three countries imported each others princes very often).  Each new foreign dynasty brought with it new privileges to keep the nobility happy.

However in the 16th century this pattern breaks.  Bohemia and Hungary fell to the Hapsburgs (who also married themselves into the crowns of of Spain,. (briefly Portugal and England), Naples, Milan, Sicily and the Netherlands).  After the Thirty Years War the ramshackle Hapsburg monarchy pulled back many of the privileges granted to the nobility.  Poland went in a different direction.  Faced with the impending death of the last male Jagiellon the magnates of Poland-Lithuania instituted an elective monarchy.

While the crown remained in the hands of female line descendants of the Jagiellons until 1660, the elective principle and the haggling by prospective monarchs for support took full control.    It was around this time that the legislative innovation that crippled Polish government for the next century was introduced – the Liberium Veto.

This measure allowed a single member of the Polish Sejm (parliament) to end the session and nullify all legislation by shouting Nie pozwalam! (I do not allow!).  Somehow this pernicious measure was allowed to continue.  Egged on with bribes from neighboring Prussia and Russia who were only too happy to see a weakened crumbling Poland and delusional deputies who considered this privilege as the hallmark of liberty, attempts at reform were thwarted for a century.  It wasn’t until 1764 that someone utilized a technicality to bypass this measure.  But by then it was too late.  In three successive partitions (1772, 1793, and 1795), Poland was wiped off the European map.

Obviously the filibuster does not even come close to the liberium veto.  But when a minority uses it of pretty much every single piece of legislation (including for example overwhelmingly popular bills like the military budget), it is hard to always appreciate the difference.  Not surprisingly calls to abolish it are rising.

In some ways the Democrats conversion on the filibuster (and boy did they love it when George W. Bush was President) mirrors their conversion on the advisability of the Independent Counsel Act.  When independent counsels targeted Republican Administrations all was fine.  It took one out of control independent counsel who acted like a heat seeking missile aimed at Bill Clinton’s rear end for the Democrats to switch sides on the issue.

The Republicans do risk overplaying their hand on this issue (they used more than 100 of them last year).  There is no constitutional right to a filibuster and the repeated use on every single item (which will likely increase with Scott Brown’s election) will increase the Democrats incentive to explore procedural technicalities like reconciliation to force a bill to a vote or even the nuclear option previously considered by the Bush Administration (which will be really hard for the Republicans to oppose since they drafted it).

The realization that they will one day return to the minority likely makes some Democrats squeamish on the issue.  But the legislative process in the Senate is currently broken on many issues (and don’t even get me started on the issue of anonymous Senatorial holds which have made the appointment of the President’s cabinet a travesty).  More appropriate protections for the minority (like giving them the ability to delay but not eternally block legislation) can be considered.  Otherwise ridiculous headlines like “Scott Brown Wins Mass. Race, Giving GOP 41-59 Majority in the Senate” will continue to proliferate around our broken legislative process.

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This was not the case in India.  The mish mash of the provinces of British India and the princely states that acceded to the India at independence made the reorganization of states essential.  Even though the trauma of partition ensured that the power of states would be curbed (more on that later), in the 1950s the fateful decision was made to reorganize the states on linguistic grounds rather than administrative efficiency.  Larger states have always brought with them a concern that the political influential areas would reap state largess while the less fortunate areas would be ignored.  As a result, demands for breaking up some of the larger states have simmered in the background since the reorganization of the states.

A decade ago the agitators for smaller states found some hope.  Uttarkhand and Jharkhand were carved out of the two most populous states in India.  Chattisgarh was carved out of the geographically largest state in India.  This brought the demand for Telangana to the forefront.  A Telugu speaking region merged into Andhra Pradesh, Telangana previously was part of the former princely state of Hyderabad.  While some of the princely states like Mysore, Baroda and Gwalior were relatively well administered, Hyderabad was not.  The region remained a resource poor economic and educational backwater.  Apart from the capital Hyderabad, a large portion of the province has felt ignored in favor of the more prosperous coastal regions of the state.  The argument was that a Telangana state would create with a more responsive local government which will boost regional development.

Unfortunately the  backing for the position is mixed.The North Indian states of Haryana and Punjab are often touted as examples of how a smaller state can benefit development.  The recent creation of Uttarkhand and Chattisgarh supply added support.  However, both Haryana and Punjab (and Western Uttar Pradesh) were the prime beneficiaries of the Green Revolution which brought prosperity to the local agricultural economies.  The various North Eastern states carved out of the once far larger state of Assam (Arunachal Pradesh, Meghalaya, Mizoram, Nagaland etc.) which did not get similar economic support and have limited local resources remain economic backwaters.  Also as the example of Jharkhand shows, a smaller state is not immune from a dysfunctional and corrupt political structure.  While in theory smaller states can imprve government responsiveness, they are not an administrative panacea.  Which brings us to the next issue and the heart of this article’s title.

The federal structure in India contains a potentially fatal flaw.

The flaw I refer to is not unknown and has been subject to some recent (and flawed) attempts to fix it. The issue was discussed in the Sarkaria Commission report in the 1980s.  Unfortunately, the commission essentially started with an excessive faith in the wisdom of the drafters of the Indian constitution and brushed aside this flaw.  The idealization of the wisdom of a nation’s founders is is hardly unique to India and is often visible in the United States.  Unfortunately it can create blinders in evaluating their decisions.

The flaw I allude to arises in Article 246 of the Indian Constitution which enumerates powers belonging to the national and government, state governments and concurrent powers in the Seventh Schedule to the constitution.  For items in the concurrent list, primacy is given to acts by the national government (a change after the partition of India).  Items 82-92 of List I of the Seventh Schedule grant the national government the exclusive right to levy among others, income taxes (on non-agricultural income), corporation taxes, property taxes and even taxes on the sale of newspapers and on advertisements posted therein (talk about micro-managing).  Items 45-63 provide the states with the exclusive right to tax a more limited source of revenue including agricultural income (which for political reasons no state has done), tariffs for the entry of goods into an area for consumption, tolls, taxes on non-newspaper advertising and intra-state sales taxes.

In micro-managing the powers of the national and state governments the drafters of the Indian constitution seemed to have overlooked the possibility of two different government entities taxing the same source of revenue or assets.  Worse, by permitting states to levy internal tariffs they perpetuated the economic policies of the British Raj that destroyed India’s domestic manufacturing.  While the United States abandoned tariffs between the states at its inception and the European Union understood the wisdom of abolishing them among its members, India still retains a tax structure designed to cripple manufacturing and the free flow of goods.

The flawed attempt to neatly divide out powers of the national and state governments resulted in the revenue sources made available to the state being insufficient to pay their expenses.  As a result the national government has to redistribute a portion of its takings to the states.  This creates two further problems.

First, states are now spending funds they do not have to raise. In a country full of irresponsible politicians it is an in invitation to populist profligacy.  So states start making dumb decisions like providing free electricity to farmers and other populist sops that they cannot afford.  As a result, even the most prosperous states generally teeter on the edge of insolvency.

Second, this opens up the Pandora’s box of just how revenue should be split among the states.  Should it go by population (where some of the most populous states contribute the least to the national kitty and which further encourages their irresponsibility).  Or, should it go to the states that actually generated the revenue (which causes heartburn in the poorer states).  All of which results in a delicate balancing act of which the attempt to create a national VAT system is the latest iteration.

As long as the Indian constitution encourages its states to suck off the national teat, its federal structure remains inherently flawed.  There is nothing wrong with some national assistance to states to remedy some inequities.  But the current set up is designed to encourage inefficiency and bad government.  As some states prosper faster than others and see the fruits of their labors distributed to others, it is bound to raise tensions within India’s federal structure.  At some point the states need to be cut loose and made to bear the costs of their fiscal irresponsibility.  With the increasing mobility of labor across India it may be the only way to force laggards like Bihar out of their corrupt fedual  backwaters.

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Thomas Bingham’s proposal in someways is emblematic of the patchwork way the United Kingdom’s unwritten constitution has evolved.  Most of its constitutional developments have been ad hoc attempts to address the problem at hand rather than a result of a comprehensive review of how and why things are the way they are.

King John abuses the nobility, get the Magna Carta.  Henry III squanders money on foreign favorites and wars (and a quixotic attempt to place his son on the Sicilian throne) get the Provisions of Oxford and Westminster.  Edward I wants money for wars in France and Scotland get a parliament.  Worried about a Catholic monarch, toss him out, restrict his successor’s power and bar Catholics from the throne.  Worried Scotland will break the personal union of the crowns when the childless Queen Anne dies. ram through an Act of Union. Expand the franchise as needed.  If the House of Lords gets in your way, cut down its power and alter its composition.  The United Kingdom did completely separate out its judiciary from Parliament until October 1, 2009 when it finally created a Supreme Court.  Until then it was a function of the House of Lords.

The piecemeal approach has generally worked, but there are some major inequities in the current system.  Even Thomas Bingham’s proposal does not address the problem created by devolution of powers to a Scottish and Welsh Parliament.  Scottish and Welsh ministers in Westminster can vote on solely English issues.  However, English MPs cannot vote on items devolved to the Scottish and Welsh Parliaments.  The London based governments of England have historically been slow to address issues of concern in the far off regions of the country.

While England has some local government at the county level, with a population of over 50 million it appears to be one of the largest regions that has not devolved powers to provincial or state governments.  There is some opposition to creating regional parliaments based on the fear that it would fracture one of the oldest unified nations of Europe.  However, turning England’s regional assemblies into genuinely representative organizations would give it responsive local government like the Scots and the Welsh have.  This has been unsuccessfully tried before and a problem seems to have been a failure to explain the functions of the assemblies.

But it could be the underpinnings of a method to create a quasi-democratic alternative to the House of Lords instead of a body of blue bloods and lifetime appointees.  Like the original United States Senate and the Indian Rajya Sabha, the parliaments of Wales, Scotland and the regional assemblies in England could elect the members of an upper house who would serve as a check on a House of Commons where a government with a majority essentially has no restrictions.  Such a body would also be better suited to control parliamentary excesses than the existing House of Lords.  Since costs of a layer of government are a concern, these could be trimmed by cutting down the size of the House of Commons.  The House of Commons with 646 members has a 100 more members that both houses of the United States Congress for a population about one fifth the size.  With a devolution of powers, there is no reason for a Parliament that size.  This does not include the over 700 members of the House of Lords.

There are of course many pitfalls to the my armchair musings above and others may have proposed them before.  The Welsh (and particularly) the Scots will likely not be happy at being equated to an English region instead of a nation constituting the United Kingdom.  Trimming the House of Commons will require a number of politicians to set their sights for prizes at lower levels.  While some may grasp at the opportunity of wielding regional power instead of sitting on a backbench, many MPs may not look forward to the possibility of unemployment.  The concerns that this will just add another layer of bureaucracy  need to be fleshed out and addressed.

But it is a drastic overhaul of how the United Kingdom is governed.  It would also provide the first meaningful check on an absolute majority in the House of Commons since the 19th century.