How Courts Decide Federalism Disputes: Legal Merit, Attitudinal Effects and Strategic Considerations in the Jurisprudence of the Belgian Constitutional Court

Abstract

An urgent question in contemporary federal theory is how institutions impact upon the centralization grade of multi-tiered systems.This article focuses on constitutional courts as one of such institutions. It constructs a classification for measuring a court’s position in federalism disputes and tests hypotheses about what determines variation across decisions within one court. The case study is Belgium, as a model of contemporary fragmenting systems.We find that if the defending party is the federal government, the probability of a centralist outcome increases compared to when a substate government is the defendant, and vice versa. Evidence suggests that legal merit plays a role to this effect.We further find that each state reform decreases the probability of a centralist outcome. This appears to be a consequence of strategic considerations.We finally find suggestive evidence that the organization of the court does not fully succeed in playing down judges’ ideological preferences.