YearXXXIII, 1991, Number 1 - Page 73
KENNETH C. WHEARE
On the eve of the Second World War, in the time that intervened between the Munich Pact and the fall of France, amidst British pacifism and on the basis of the forceful ideas proposed by Clarence K. Streit in his volume Union Now,[1] Federal Union understood clearly how to impute war to international anarchy and gave life to a large movement of opinion. Besides this, Federal Union proposed the formula of federal government as the only one able to resolve the European problem and looked forward to achieving, with the World federation, perpetual peace. Founded in the Summer of 1938 on the initiative of three young men, Charles Kimber, Derek Rawnsley and Patrick Ransome, who could not resign themselves to the inevitability of the war, this movement was the outcome of a long tradition of thought that had its roots in the culture of 19th century constitutionalism, of liberal derivation, and the teaching of Philip Kerr and Lionel Curtis.[2] By June 1940, 239 sections existed with more than 10,000 members. Among these, were included the well-known figures: Lord Astor, William Beveridge, Ernest Bevin, Noel Brailsford, William B. Curry, Julian Huxley, Ivor Jennings, C.E. Joad, Harold Laski, Walter Layton, Ronald Mackay, Salvador de Madariaga, Lionel Robbins, Wickham Steed, Arnold Toynbee, C.V. Usborne, Barbara Wootton, the Archbishops of York and Durham, and naturally Philip Kerr and Lionel Curtis. However, besides all this support, the debate that this movement provoked was extraordinary and involved some of the most prominent personalities in British politics: from Lord Halifax to A. Eden, Leo Amery to Sir Archibald Sinclair, N. Chamberlain to W. Churchill. It was in the course of this debate that the leader of the Labour Party, Clement R. Attlee, announced the now famous phrase: “Europe must federate or perish”. It is well known that this display of forces pushed the Foreign Office, in March 1940, to study the project of an “Act of Perpetual Association between the United Kingdom and France”, a project that was vigorously supported by J. Monnet, and which induced Churchill, on 16th June, that is on the eve of the French surrender to the III Reich, to put forward the proposal of “an indissoluble” Franco-British union: “The two Governments declare that France and Great Britain shall no longer be two nations, but one Franco-British Union. The constitution of the Union will provide for joint organs of defence, foreign, financial and economic policies. Every citizen of France will immediately enjoy citizenship of Great Britain; every British subject will become a citizen of France ...”[3]
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Besides the propaganda and initiatives to influence the political classes, Federal Union understood that the outcome of its fight depended decidedly upon the involvement of culture. There was a lot of ignorance of the real cause of war: the independent sovereignty of states. This ignorance pervaded the world of pacifists, making them more inclined to appeasement and therefore, objectively, accomplices of Nazism. Greater still were the prejudices that made it impossible to think of the limitations of that sovereignty; there was widespread blindness about the insufficiency – in order to obtain this limitation – of every form of international collaboration founded upon good intentions or the deceptive hope, be they liberal, democratic or socialist, to make it lasting thanks to the identity of the regimes, that would have generated spontaneously, as a by-product, peace. The failure of the United Nations only opened the eyes of the federalists. They were the only ones to know that federal government limits the sovereignty of the states by subordinating them to an international law enforced by an international government.
It was necessary to make those who sincerely wanted peace, but did not know the suitable means to establish it, aware of this truth. This goal could be achieved by giving more authority to the federalists’ points of view. Thus, in October 1939, on Patrick Ransome’s initiative, the Federal Union Research Institute was founded “to undertake an objective study of the technical problems which would arise should Federation in fact be achieved between states with a long tradition of sovereign independence”.[4] The most serious academics of the time were called to undertake this task. Not all of them were federalists, but all were willing to serve a just cause by putting their competent knowledge to the problems they intended to confront: from William Beveridge to C.E.M. Joad, Lionel Robbins to Barbara Wootton, A.L. Goodhart to K. Zilliacus. Included, was Kenneth C. Wheare, an illustrious Oxonian constitutionalist, who was given the task of describing the character of federal government. Their contributions, initially distributed as Federal Tracts, were collected together in a volume by Patrick Ransome entitled Studies in Federal Planning, published in 1943.
Introducing this volume, Ransome wrote with extraordinary perspicaciousness: “Federalism can only be applied over areas in which supernational government is both necessary and practicable, and is a supplement to rather than a substitute for a looser world-wide association of independent states. As Sir William Beveridge has said, ‘Federalism is a strong remedy for a virulent disease, not a healing lotion to be sprayed over the world.’ At the time when most of these papers were written, it was assumed that the area in which the strong remedy was most needed was that known roughly as Western Europe including Germany ... Much has happened since then, and the European civil war has become a worldwide struggle”. It was therefore difficult to identify where federal government could be established by the end of the war. But it was not difficult to establish that “wherever it is desired to create true international government and to abandon mere international collaboration, then it is to Federalism that the authors of the new system turn in their search for a method of government that secures the essentials of national freedom and the conditions of international peace”.[5]
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If one does not take into account its foundation which coincides with the first thoughts of A. Hamilton, Wheare’s essay, which we have printed in full, constitutes a real landmark among the scholars who have studied the works of constitutional federalism. The discourse is always clear and bright, the argument direct and convincing, the definitions neat and precise. But let us look further at these passages. The federal system is characterized by “a division of governmental functions between one authority, usually called the federal government, which has power to regulate certain matters for the whole territory, and a collection of authorities, usually called state governments, which have power to regulate certain other matters for the component parts of the territory ... Federal government means therefore a division of functions between coordinate authorities, authorities which are in no way subordinate one to another either in the extent or in the exercise of their allotted functions”. If this is federal government, these are its constituent figures: “a supreme written constitution, an amending process which cannot be operated either by the federal government or by the state governments acting alone, a supreme court which determines the meaning of the constitution in case of dispute, and financial self-sufficiency for each of the co-ordinate authorities”. With regard to the historical reasons that make this possible, they manifest themselves only “when a group of territorial communities are prepared to co-operate with each other for the regulation of certain matters but for those matters only, and when they are determined at the same time to remain separate and supreme, each in its own territory, for the regulation of other matters”. Wheare grants that “federalism is a form of government which is not always appropriate or always easy to work”, but correctly reminds us that “federal government is at least government; it is order, not anarchy, it is peace, not war”. He seems to denounce in advance the dullness of those who will consider the choice between the federal and confederal model in order to achieve democratic and constitutional construction of the community as an abstract or doctrinaire decision.
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The reader might be surprised by the fact that Wheare defines federal government as conservative government. The expression, however, must not be misinterpreted. The two following points are worth making. First, this definition immediately follows another one, according to which the changes (and the context suggests dealing foremostly with constitutional changes) “can come about at the pace of the slowest.” Hence, it is clear that, by underlining the conservative character of the federal system, Wheare intended to stress the substantial guarantee of independence of the member states of a federation. Therefore, in contrary to a widely believed idea that has been skilfully diffused and meritically taken up, in a real federation it would be impossible to suppress the independence of the member states, or impose to a national group unfamiliar customs, and so on. Second, the term “conservative” above all looks at constitutional stability and not the policy of the government. Federations, like the unitarian states, know as many right wing governments as left wing ones. It must not be forgotten, however, that in the case of federations, constitutional stability – that is characteristic of the state and not of the government – is equivalent to perpetual peace between member states that have no more need for weapons (as traditional states do), to defend their independence, but only judges. Since there is no other way to disarm states, it necessarily follows that, in our world that has reached a point in which weapons are no longer a means of defence but of self-destruction and universal extermination, the federal choice, regardless of the politics of its government, is in every way the most progressive choice that a human community can make. It follows that we need to accelerate to the utmost the construction of a Federal Europe to direct the world towards the federal re-enforcement of the UN and universal disarmament.
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Wheare returned to his definition of federal government in a speech entitled Some Theoretical Questions about Federalism[6] at a congress organized by the International Political Science Association held at Oxford from 19th to 24th September, 1963. On this occasion, Wheare acknowledged federal government as the most complete form of constitutionalism and declared that he accepted Sir Robert Garran’s definition, (the founding father of the Australian Constitution) according to whom federal government was “a form of government in which sovereignty or political power is divided between the central and the local governments, so that each of them within its own sphere is independent of the other”. Replying to an objection of Carl Friedrich who asserted that “federalism is incompatible with the traditional concept of sovereignty”, he continued: “So much the worse for the traditional concept. He who ‘has the last word’ needs not have the last word on everything; some may have the last word on some things, some on others. This indeed was one of the great constitutional advances which the American inventors of federal government made”. The federal system is therefore a system of divided sovereignty exerted in the sphere of respective competences, in which the fact of independence is as of equal importance as that of co-ordination. This led Wheare to refute the opinion of A.H. Birch and M.J.C. Vile who believed, in the latter’s words, that “federalism ... is a system of government in which central and regional authorities are linked in a mutually interdependent political relationship; in this system a balance is maintained such that neither level of government becomes dominant to the extent that it can dictate the decisions ofthe other, but each can influence, bargain with, and persuade the other”. According to Wheare in fact “it is the independence or (to use Carl Friedrich’s preferable term) autonomy of the regional and general political communities or governments or other authorities which is essential to a federal system. You cannot have a federal system without this regional and general autonomy, but you could have a federal system with little or no significant inter-action and cooperation”.
Still arguing with Carl Friedrich, who maintained that “federalism seems the most suitable term by which to designate the process of federalising a political community”, Wheare made a distinction between “the institutional form resulting from the general process”, which gave rise to the name of “federation”, from the same process that could well be defined “federalising”, provided that its outcome would be a “federation”. David Hume, who was always disturbed when people cheated with words, will not, this time, be turning in his grave.
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For the federalists, Wheare’s lesson has great cognitive importance. The federal state, by breaking the exclusive loyalism which is typical of the nation-state, is the most adequate political form for organizing a “federal society”, that is that type of society which is in formation in those areas where the historical process is most advanced. This advancement is a consequence both of the crisis of the nation-state, which generated the national society, which is artificial, closed, and denies any local peculiarity, and of the development of productive forces which is provoking an increasing interdependence of human relationships tending towards a global dimension. In the historical federations, there are two levels of government that have organized a “divided” loyalism. But the formula is perfectly adapted to organize, in a growing series of concentric circles, all the potential centres to which individuals feel loyalty: from the cell of social solidarity, the neighbourhood, up to the institutions of the unity of all mankind, the World government. Federal government is, therefore, the constitutional model that allows the realization of the values of communitarianism and cosmopolitanism. This result becomes clearer if it is considered that:
a) The federation is the political formula that realizes peace because it disarms states and subordinates them to a law enforced by a power – a law in front of which all the member states have equal rights independent of their size. For this reason, federal government is also the highest expression of constitutionalism and of the rule of law. But federal government also affirms international democracy because it liberates the states from the logic of the power relationship and submits them to democratic control. This political formula is thus the only one that makes conceivable a constitutional and democratic World government, a government which is not only a theoretical requisite, but a real need in the age of potential nuclear holocaust and ecological disaster. Finally, federal government helps us to think more clearly about the possibility of an “Atlantic Community”, on the one hand, and of a “Common Home”, on the other, the outlines of which become more definite if they are thought of as federations of federations. This is important because, on this basis, a less vague picture is drawn up of “partial World government” which Einstein held as a necessary step towards the building up of a World government and an objective, that after Hiroshima became urgent.
b) The federation is the constitutional formula that allows one to think coherently of the overcoming of the nation-state that is happening in Europe. It is a process that, near the top, has taken the form of European unification and, near the bottom, that of regionalization and development of participatory democracy upon territorial bases. Evidently the decisive factor is Europe. But with the affirmation of federalism on a European level, it would be reasonable to apply the federal principle also inside the states that would become federations of regions (with a senate of the regions); inside the regions, that would become federations of provinces (with a senate of the provinces); and even inside the municipalities (with a senate of neighbourhoods). In this picture that attributes monetary sovereignty to the Union and solidarity policies to a governmental level that is next to the city dweller and can finance it only through taxation, it is possible to alter the degenerative tendencies of the welfare state. Still with this picture in mind it is possible to give a positive answer to the legitimate demands for emancipation that come from national minorities long oppressed by despotic or imperialistic regimes (yesterday the Eastern European countries, today large populations from the Soviet Union and Yugoslavia) without leading the world on the road to independence through armaments. A road at the end of which stands the prospect of returning to tribal anarchy.
c) The federation, unlike the nation-state which could expand only through imperialism, is politically open. Once the primary core has been established, every state can be part of it if it agrees and accepts the constitution and consequently the limitations on its sovereignty. The Union of the thirteen American colonies, which has extended up to its actual size is an example. The significance of this is that the idea of “variable geometry”, reasonably contested with regard to European integration, becomes normal when it refers to the constitutional development of the Community. In order to form the European Federation then, it is not necessary that all the twelve states adhere from the beginning. Also it is not necessary for all world states to adhere at the same time in order to form the World Federation.
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WHAT FEDERAL GOVERNMENT IS
Federal government is a thing of which most people in the United Kingdom of Great Britain and Northern Ireland have had no direct, personal experience, and they find it hard, therefore, to understand what it is. Moreover when they do encounter it from time to time in the newspapers, they find it equally hard to understand what it is for and why such a thing as a federal system of government ever came to be invented. For when the federal system of the United States or of Canada or of Australia is in the news, it is usually because some important legislation duly passed either by the national legislature of the country or by the legislature of some part of it has been declared invalid by the supreme judicial authority for the federation. People in this country are not used to a system of this kind. They are accustomed to a form of government one of the leading characteristics of which is that one single legislature, the King-in-Parliament at Westminster, has authority to make laws for the whole of the United Kingdom on all matters whatsoever; and these laws duly made prevail over rules made by any other body in the Kingdom and are accepted by the courts as valid law and supreme law. The result is that people in this country may doubt whether acts of parliament are good laws, but they cannot doubt that they are good law. In a federation it is otherwise. There, it is possible to doubt not only whether the acts of some legislature in the federation are good laws but also whether they are good law, and it is possible for a court to declare acts which are almost universally recognised as good laws to be bad law and no law at all. This intentional obstruction, in a federation, of the will of the elected representatives of the people as expressed in acts of the legislature, appears to us to be a strange device. Why do people adopt such a form of government, and why do they continue to put up with it?
There is one community in the United Kingdom which will find it easier than others to understand what federal government is like and what it is for, and that is the people of Northern Ireland. For the inhabitants of Northern Ireland have this in common with the inhabitants of a federation, that their lives are regulated not by one parliament only, but by two parliaments. People in the rest of the United Kingdom – England, Scotland and Wales – are regulated by one parliament only, the Parliament at Westminster, which has authority to deal with all their affairs. Northern Ireland shares this Parliament at Westminster with the rest of the United Kingdom for the regulation of certain reserved subjects, for example defence, foreign relations, aerial navigation, external trade, aliens and naturalisation, coinage, copyright, the succession to the throne, and merchant shipping – all clearly subjects of common concern to the whole United Kingdom. For the regulation of all other matters the people of Northern Ireland have a parliament of their own at Stormont near Belfast, and they are free to make laws through it for the peace, order and good government of Northern Ireland. The object of this system is clearly that matters primarily affecting Northern Ireland should be regulated in Northern Ireland and by Northern Ireland, while matters affecting Northern Ireland and the rest of the United Kingdom in common should be regulated by a parliament at Westminster in which Northern Ireland is enabled to co-operate through her representatives with the representatives of the other parts of the United Kingdom.
What federal government is not.
But this is not federal government. It possesses some of the characteristics of federal government but not all of them. There is a division of governmental functions in the United Kingdom between a legislature which has authority in certain matters for the whole Kingdom and a legislature which has authority in other matters for a part of the Kingdom. This division of functions between such legislatures is a characteristic of federal government. A mere division of functions, however, is not enough to constitute federalism. The division must be made in a particular way, and in the United Kingdom it is not made in that particular way. The Parliament at Stormont derives its powers from the Parliament at Westminster and its powers may be increased or diminished or abolished altogether by the Parliament at Westminster. Moreover, although the Parliament of Northern Ireland is forbidden to make laws on certain subjects which have been reserved for legislation by the Parliament of the United Kingdom, this latter parliament itself is in no way restricted to this reserved field alone. It may make laws upon any matter whatsoever affecting Northern Ireland, and if its acts conflict with acts which the Parliament of Northern Ireland has passed on any subject, the acts of the Parliament of the United Kingdom prevail. There has been no alteration in the principle that the Parliament of the United Kingdom may make laws on any matter whatsoever for the whole of the Kingdom. All that has happened in the case of Northern Ireland is that the Parliament of the United Kingdom has marked out a certain sphere in which it has authorised the Parliament of Northern Ireland also to legislate, and another sphere in which the Parliament of Northern Ireland is not authorised to legislate, and which comes under the exclusive control of the Parliament of the United Kingdom. It implies by this division that it does not intend as a general rule to invade the sphere it has conferred on the Parliament of Northern Ireland, though it has legal power to do so, and that it will confine itself to the reserved field. The essence of this system then is that the Parliament of Northern Ireland is subordinate to the Parliament of the United Kingdom, deriving its powers from this latter parliament, holding them at its pleasure and exercising them through its forbearance. Acts of the Parliament of Northern Ireland if they transgress the sphere allotted to it are invalid; acts of the Parliament of the United Kingdom on any matter whatsoever are valid and prevail. This is not federalism, it is devolution.
If the name ‘federal’ cannot be applied to a system where the governments of the component parts of a territory are, on the model of Northern Ireland, subordinate to the government of the whole territory, equally it cannot be applied to a system where the government of the whole territory is subordinate to the governments of the component parts. A system of this latter kind – which is sometimes called a confederation or a league – was tried by the thirteen American colonies before they adopted their present system in the Constitution of 1787. Ten years earlier they had drawn up Articles of Confederation in virtue of which they established a Congress of the United States with sole and exclusive right of determining on peace and war, entering into treaties and alliances, regulating coinage, establishing and regulating post-offices from one state to another, and regulating the land and naval forces in the service of the United States. But this Congress was composed of delegates from each of the States; its decisions on most of the important matters committed to it required the assent of nine States if they were to be effective; and it had no power of taxing to raise revenue for the performance of its services. The government of the United States thus established was clearly not a separate government, supreme in its own allotted sphere, but a government subordinate to the State governments, a minority of whom could prevent the Congress of the United States from taking action of which they disapproved and each one of which retained in its own hands, through its exclusive power to tax, the power to nullify the decisions of the Congress by failing to raise the necessary revenue for their execution. This, again, is not federalism.
What federal government is.
What then is federalism? Its essence consists, I think, in this: that in a federal system, the functions of government are divided in such a way that the relationship between the legislature which has authority over the whole territory and those legislatures which have authority over parts of the territory is not the relationship of superior to subordinates as is the relation of the Parliament at Westminster to the Parliament at Stormont, but is the relationship of co-ordinate partners in the governmental process. In a federal government there is a division of governmental functions between one authority, usually called the federal government, which has power to regulate certain matters for the whole territory, and a collection of authorities, usually called state governments, which have power to regulate certain other matters for the component parts of the territory. This division, as has been said, is made in a particular way. First, the actual allocation of functions between federal and state governments cannot be altered either by the federal government acting alone or by the state governments acting alone and, secondly, the exercise by the federal government of its allotted functions cannot be controlled by the state governments or vice versa. Federal government means therefore a division of functions between co-ordinate authorities, authorities which are in no way subordinate one to another either in the extent or in the exercise of their allotted functions.
What federal government is for.
If this is what federal government is, what is it for? Why is it adopted? Why are people not satisfied with devolution? A short answer to these questions may be given in this way. If all that people want is the power to regulate local affairs locally as a general rule, and if they are prepared at the same time to leave to a national parliament not only the power to regulate national affairs but also a power to regulate local affairs too if it thinks fit, that is, a potential supremacy over all matters whatsoever in the territory, then a system of devolution will do. This system was considered appropriate to the needs of Northern Ireland. It was adopted also in the Union of South Africa. Here each of the four provinces of the Union has a provincial council which has power to make ordinances on matters which have been allotted to it by the Constitution. Among the matters so allotted were elementary education, agriculture, hospitals, local authorities, roads and bridges, and direct taxation for provincial purposes. In this way there is a local control of local affairs. But all provincial ordinances require the assent of the Governor-General of the Union, that is of the Union Government. Moreover the Union Parliament retains power not only to legislate on matters of importance to the whole Union, but also to invade the spheres allotted to the provincial councils in the Constitution, and to override or nullify provincial ordinances. This system is appropriate so long as the provinces of the Union do not desire to have an absolute, guaranteed, exclusive control of certain matters. If they do desire this more rigid division of functions, then federalism, not devolution, is the appropriate system of government. Therefore it is only when a group of territorial communities are prepared to co-operate with each other for the regulation of certain matters but for those matters only, and when they are determined at the same time to remain separate and supreme, each in its own territory, for the regulation of other matters, that federal government is appropriate. Federalism provides for this desire for co-operation in some things coupled with a determination to be separate in others. It was because the American colonies had this attitude to each other that they formed the federation of the United States of America, enumerating in their constitution the matters which they handed over to the federal congress for regulation – foreign commerce, inter-state commerce, coinage, naturalisation, post office, copyright, defence, and so on. The list of federal subjects is very like the list of subjects reserved for regulation by the Parliament of the United Kingdom in respect of Northern Ireland, but the relationship of the federal congress to a state legislature in the United States is very different from that of the Parliament of the United Kingdom to the Parliament of Northern Ireland. The United States Congress cannot legislate on any subjects outside those allotted to it in the Constitution, and cannot therefore invade the spheres of the States; whereas the Parliament of the United Kingdom, as has been mentioned already, is not confined to these reserved subjects but may legislate on any matter whatsoever for Northern Ireland. Similar arrangements were made in Australia and Canada in order to provide for the desire of the colonies there to co-operate in some matters and to retain a power of separate regulation over other matters.
What federal government is like.
I have attempted to explain what federal government is and what it is for. It may next be asked: What is it like? Is the governmental machinery in a federation arranged in any special way? Are there any essential, distinguishing marks in the institutions of a federal government? There are, and two or three of them may be mentioned.
First of all, since federal government involves a division of functions and since the states forming the federation are anxious that this division should be explicit and guaranteed and that they should not surrender more powers than they know, it is essential for a federal government that there be a written constitution embodying the division of powers, and binding all governmental authorities throughout the federation. From it all state and federal authorities derive their powers and any actions they perform contrary to it are invalid. It must be the supreme law of the land.
Thus it is that the United States, Australia, Canada and Switzerland all have their written constitutions in which can be found inscribed the limits of the powers allotted to federal and state or provincial or cantonal governments respectively. The Constitution of the United States, indeed, expressly declares itself to be ‘the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.’
In the second place, if the division of powers is to be guaranteed and if the constitution embodying the division is to be binding upon federal and state governments alike, it follows that the power of amending that part of the constitution which embodies the division of powers must not be conferred either upon the federal government acting alone or upon the state governments acting alone. It is preferable, though not essential to federalism, that the power should be exercised by the federal and state authorities acting in co-operation, as is done in the United States, for example, where amendments may be carried by a two-thirds majority, in both houses of Congress, together with a simple majority in the legislatures of three-quarters of the States. In Australia and in Switzerland the people are associated in the amending process through a referendum. Or the power of amendment may be vested in an outside authority, as in the case of Canada, whose constitution can be amended only by the Parliament of the United Kingdom. But whatever arrangement is made, the essential thing is that neither the federal government nor the state governments should be authorised to alter unilaterally the extent of the powers which they exercise, for if they can do this, federalism is modified.
Again, if there must be a division of powers and if this division must be inscribed in a constitution and if this inscribed division must be guaranteed, it follows that in any case of dispute between federal and state governments as to the extent of the powers allocated to them under the constitution, some body other than the federal and state governments must be authorised to adjudicate upon those disputes. It is not accidental, therefore, that there exists in the United States, Australia and Canada a body of this kind. The United States has its Supreme Court; Australia has a High Court together with, for some cases, the Judicial Committee of the Privy Council; and Canada has the Judicial Committee of the Privy Council. Switzerland has no institution performing this function completely and is to this extent imperfectly federal.
These disputes about the limits of state and federal power are common in a federation, and they keep lawyers busy. Indeed, it may be said that federalism could not well live without lawyers; nor perhaps would lawyers live so well without federalism.
Finally, if the governmental authorities in a federation are to be really co-ordinate with each other in actual practice as well as in law, it is essential that there should be available to each of them, under its own unfettered control, financial resources sufficient for the performance of the functions assigned to it under the constitution. It is no good allotting functions to the federal or to state authorities and devising legal safeguards so that each should be limited strictly to the performance of its respective functions, unless at the same time adequate provision has been made so that each authority can afford to do its job without appealing to the other for financial assistance. For if state authorities, for example, find that the services allotted to them are too expensive for them to perform, and if they call upon the federal authority for grants and subsidies to assist them, they are no longer co-ordinate with the federal government but subordinate to it. Financial subordination makes an end of federalism in fact, no matter how carefully the legal forms may be preserved. It follows therefore that both state and federal authorities in a federation must be given the power in the constitution each to have access to, and to control, its own sufficient financial resources. Each must have a power to tax and to borrow for the financing of its own services by itself. It is not easy to devise a division of financial and taxing powers at the outset of a federation which will infallibly satisfy this criterion. It is likely that no reliable forecast can be made of the cost of the services allotted to the respective authorities or of the yield which the allotted taxing powers will give. Experience may show that some modification of the division of services and resources is necessary. This must be expected and provided for. If not, the system of federal government will soon break down in practice.
These four things – a supreme written constitution, an amending process which cannot be operated either by the federal government or by the state governments acting alone, a supreme court which determines the meaning of the constitution in case of dispute, and financial self-sufficiency for each of the co-ordinate authorities – seem to be some of the essential features of a federal system of government. There are other features which some or all federal states possess – for example, equal representation for each component state in the upper house of the federal legislature, as in Australia, Switzerland or the United States; or separation of the persons composing the legislature, executive and judiciary, as in the United States. These may be conducive to the good working of a particular federal government. But they are not essential consequences of its being federal. They can be omitted from a constitution and that constitution can still be federal.
Federal government may be modified.
The tone of this pamphlet is dogmatic. I have put forward uncompromisingly a criterion of federal government – the delimited and coordinate division of governmental functions – and I have implied that to the extent to which any system of government does not conform to this criterion it has no claim to call itself federal. This is my view. But I should say at once that it is not a view which would be accepted in its entirety by all students of political institutions. Many of them would regard it as excessively rigid. In extenuation of my dogmatism in defining federalism, I think it important to say just this. I must not be understood to argue that because a state cannot claim to be an orthodox federal state, it is therefore damned politically. Federal government, pure and unadulterated, is not necessarily everywhere and always good government. Some modifications upon the completely delimited and co-ordinate division of functions characteristic of federalism may be essential if good government or efficient, decisive government shall be achieved in a given community. It may be wisest for a group of states in devising a system of government for themselves to adopt strict federalism in some matters and a modified federalism or no federalism at all in other matters. Federalism is not an end in itself. It is a means to providing a system of government in circumstances where people are prepared to give up only certain limited powers and wish to retain other limited powers, both sets of powers to be exercised by co-ordinate authorities. Wherever this condition does not exist, federalism is not necessary.
An examination of governments which are usually called federations reveals the fact that few of them are completely federal. In most of them modifications of strict federalism have been introduced, and, in the present writer’s view, they are not necessarily the worse for that. Canada is the best example. The federal government in Canada is given certain powers in the constitution to control the exercise by the provincial governments of the powers allotted to them. The federal government appoints and may dismiss the lieutenant-governor of a province, the nominal head of the provincial government; it may instruct a lieutenant-governor to withhold his assent from a bill duly passed by the provincial legislature and reserve it for the signification of the pleasure of the Governor-General of Canada, the head of the federal government, who acts on the advice of federal ministers; and it may disallow any act of a provincial legislature even after it has been duly passed by the legislature and assented to by the lieutenant-governor. These powers are by no means a dead letter. They have been exercised in recent years to nullify some of the legislation passed by the Social Credit Government in the Province of Alberta, of whose policies the federal government of Canada did not approve. As a result of these provisions the provincial governments in Canada when carrying out the legislative process on those subjects allocated to them under the Canadian Constitution are clearly subordinate to, not co-ordinate with, the federal government, and to this extent federalism is modified. The modifications might be justified on the ground that they bring uniformity and unity where both may be needed and that they counteract an excessive separatism, always inherent in federalism, which may imperil the integrity of the federation.
Another example of a modification in strict federalism is found in the provision in some federal states that power to legislate on many important subjects is not given exclusively to the federal authority or to the state authorities but is conferred on both alike, with a provision that in case of conflict the legislation of one authority – usually the federal legislature – should prevail over that of the other. This happens in Australia and the United States, for example, and to a less extent in Canada. In Australia and the United States most of the subjects which are given to the federal legislature are subjects upon which state legislatures also may legislate unless and until federal legislation is passed upon them, whereupon state legislation must give way to federal legislation in so far as it conflicts with it. This power of concurrent legislation is considered by many to be contrary to the strict doctrine of federalism, but it is obvious that it may none the less introduce into government a flexibility and a variety and a possibility of experiment which is valuable and in some cases indispensable. It cannot be emphasised too strongly that even if federalism must necessarily be defined dogmatically, it need not necessarily be followed religiously.
It has usually been hard to establish a federal government. The forces of separatism and individualism which make federalism necessary make any super-state government at all almost impossible. And when a federation has with difficulty come to exist, it is only with difficulty that it continues to exist. Its operation requires great skill and tact. Its success depends upon an enormous patience and an enormous capacity for compromise among the statesmen who work it. Swift and decisive government is impossible. Deep dividing issues must be avoided. Changes can come about only at the pace of the slowest. Federal government is conservative government. Federal government is above all legalistic. It is created and regulated by a legal document; it is safeguarded by a court of law.
Compromise, conservatism, and legalism – these are at once the virtues and the vices of federal government. It is wise to recall them when one proposes to set up a new federal government in the world. Those who do propose such a federal government, however, may feel inclined to say to me at this point: The difficulties you have been talking about seem to us to be much less urgent and more remote. Our greatest difficulties come not from those who prefer a unitary government for Europe to a federal government for Europe, but from those who do not believe that any form of government, strictly so called, for Europe is possible or desirable. The real obstacle for us is the supporter of the sovereign, independent state and not the supporter of the unitary state.
That is true. It is also true that they must expect, when they overcome the objections of those who believe in the sovereign, independent state, to meet thereafter the objections of those who, used to the simple certainties of unitary government, declare that they do not believe in federalism. It has seemed wise therefore to recall that federalism is a form of government which is not always appropriate or always easy to work. It is fair to recall at the same time that federal government is at least government; it is order, not anarchy, it is peace, not war.
(Prefaced and edited by Luigi V. Majocchi)
[1] See “Clarence K. Streit”, in The Federalist, XXIX (1987), pp. 72 ff.
[2] See Sir Charles Kimber, “Federal Union,” in The Federalist, XXVI (1984), pp. 199 ff.
[3] See D. Thomson, The Proposal for Anglo-French Union in 1940, Oxford, Clarendon Press, 1966, pp. 4 and 28.
[4] P. Ransome (edited by), Studies in Federal Planning, London, MacMillan, 1943, p. VI. The quotations are taken from the reprinted edition by The Lothian Foundation Press, which appeared in 1990 with an introduction by Sir Charles Kimber.
[5] P. Ransome, op. cit., pp. IX and X.
[6] Copies of the typescript are available for consultation at the Istituto di Scienze Politiche of the University of Turin.
