Abstract
This chapter continues to contextualize the analytical model in Chap. 9. The chapter illustrates the instability of federal orders by showing how they transition closer to unitary states in terms of the vertical division of power between federal and state (or provincial) governments. Focus is on the constitutional evolution in the three great Anglo-American federations, especially on the Commonwealth of Australia and how it compares to the United States and Canada. The construct of the residuum of powers is used to explain the evolution towards unitary states.
An earlier version of this chapter appeared as Gussen, Benjamen Franklen, ‘Reflections on La Fata Morgana: Watsonian “prestige” and Bagehotian “efficiency”’ (2017) 12(1) The Journal of Comparative Law 80.
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Notes
- 1.
William Ewald, ‘Comparative Jurisprudence II: The Logic of Legal Transplants’ (1995) 43(4) The American Journal of Comparative Law 489, 490. See also Alan Watson, Legal Transplants: An Approach to Comparative Law (University of Georgia Press, 1993).
- 2.
Walter Bagehot, The English Constitution (Champan and Hall, 1st ed, 1867). Another useful dichotomy is that of Thorstein Veblen where he distinguishes between the ‘ceremonial’ constitution (looking at the past) and the ‘instrumental’ (or ‘technological’) constitution (looking at the future). See Thorstein Veblen, The Theory of the Leisure Class: An Economic Study of Institutions (Penguin, 1994). See also David A Reisman, The Social Economics of Thorstein Veblen (Edward Elgar, 2012).
- 3.
Alan Watson, Legal Transplants: An Approach to Comparative Law (University of Georgia Press, 1993).
- 4.
Ibid.
- 5.
‘Bill of Rights’ (1789) 5(11) The Founder’s Constitution http://press-pubs.uchicago.edu. See also Thomas O Hueglin, Comparative federalism: a systematic inquiry (University of Toronto Press, 2006) Chap. 6.
- 6.
Bagehot, The English Constitution.
- 7.
For a general discussion of legal transplants, see David Nelken and Johannes Feest, Adapting Legal Cultures (Bloomsbury Publishing, 2001).
- 8.
Fuzzy logic represents uncertainty as the degree of membership in a set, as opposed to probability theory where uncertainty is modeled as the probability of a membership in a set. Fuzziness is an alternative to randomness. See Bart Kosko, ‘Fuzziness vs Probability’ (1990) 17 International Journal of General Systems 211.
- 9.
See, for example, Richard Posner, Law and Literature: A Misunderstood Relation (Harvard University Press 1988); Antonin Scalia, A Matter of Interpretation (Princeton University Press 1997); Benjamin Cardozo, ‘Law and Literature’ (1925) 14 Yale Review 699; Mark Van Hoecke, Law as Communication (Hart Publishing, 2002); Maurice Adams and Dirk Heirbaut (eds), The Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke (Hart Publishing, 2014).
- 10.
Max Weber, Economy and Society: An Outline of Interpretive Sociology (University of California Press 1978).
- 11.
A third type of decentralization, political decentralization, expands formal democratic channels to entrust individuals with a larger role in formulating and implementing policies, but does not inform the constitutional division of powers between different vertical levels of government.
- 12.
Walter Bagehot, The English Constitution (Champan and Hall, 1st ed, 1867). Bagehot explains the distinction between the dignified (canonical) and efficient constitutions in the following terms (at 5):
No one can approach to an understanding of the English institutions, or of others which, being the growth of many centuries, exercise a wide sway over mixed populations, unless he divides them into two classes. In such constitutions there are two parts (not indeed separable with microscopic accuracy, for the genius of great affairs abhors nicety of division) first, those which excite and preserve the reverence of the population—the dignified parts, if I may so call them; and next, the efficient parts—those by which it, in fact, works and rules. There are two great objects which every constitution must attain to be successful, which every old and celebrated one must have wonderfully achieved every constitution must first gain authority, and then use authority, it must first win the loyalty and confidence of mankind, and there employ that homage in the work of government.
- 13.
See Gary W Cox, The Efficient Secret: The Cabinet and the Development of Political Parties in Victorian England (Cambridge University Press, 2005) 5.
- 14.
For a general discussion of the US federal system, refer to Mark Tushnet, The Constitution of the United States of America: A Contextual Analysis (Hart, 2nd ed, 2015).
- 15.
James Madison, ‘The Federalist No 45: “The Alleged Danger from the Powers of the Union to the State Governments Considered”’ in Alexander Hamilton, James Madison, and John Jay (eds), The Federalist (Barnes & Noble Classics, 2006) 204.
- 16.
In fact, the States residuum powers can be seen in the earliest constitutional propositions. Benjamin Franklin’s Articles of Confederation, for example, which were proposed in general Congress in Philadelphia on 10 May 1775, stipulated the following:
ART III
That each Colony shall enjoy and retain as much as it may think fit of its own present Laws, Customs, Rights, Privileges, and peculiar Jurisdictions within its own limits; and may amend its own Constitution as shall seem best to its own Assembly or Convention.
Similarly, the powers assigned to the federal government were enumerated as follows:
ART V
That the Power and Duty of the Congress shall extend to the Determination on War and Peace, to sending and receiving ambassadors, and entering into Alliances, [the Reconciliation with Great Britain;] the Settling all Disputes and Differences between Colony and Colony about Limits or any other cause if such should arise; and the Planting of new Colonies when proper.
The Congress shall also make such general Ordinances as tho’ necessary to the General Welfare, particular Assemblies cannot be competent to; viz to those that may relate to our general Commerce; or general Currency; to the Establishment of Posts; and the Regulation of our common Forces. The Congress shall also have the Appointment of all General Officers, civil and military, appertaining to the general Confederacy, such as General Treasurer, Secretary, &c.
- 17.
The transplant is the residuum design rather than the level of government to which it is assigned.
- 18.
See Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Hart, 2015); W P M Kennedy, ‘The Judicial Process and Canadian Legislative Powers’ (1940) 25(2) Washington University Law Review 215; A H F Lefroy, Canada’s Federal System (The Lawbook Exchange, 2006).
- 19.
Canada’s first constitution followed the Treaty of Paris of 1763, which ended the Seven Years’ War between Great Britain and France. In the terms of the Treaty, France ceded all their territories east of the Mississippi (which include ‘New France’ centered on the St Lawrence Valley and Acadia) to Britain. This constitution was established by the Royal Proclamation of 1763, issued by George III. The proclamation established a new government for New France and reorganized the territory as a new province, Quebec. It was envisaged that this arrangement would facilitate a gradual conversion of the territory to an English colony. This tension between the French and the British settlers was in fact the defining dynamic of Canadian constitutionalism and its evolution. After the American Revolution of 1783, there was a substantial inflow of English ‘loyalist’ settlers into Quebec. This leads to the Constitutional Act 1791 (Imp), which divided Quebec into two provinces: Lower Canada and Upper Canada. However, settlers’ demands for responsible government lead to the Act of Union of 1840, which reunited the Lower and Upper Canada provinces into a new province, the Province of Canada. The Act of Union was amended in 1848 to reinstate French as an official language. The American Civil War (1861–1865) and fears from a possible encroachment by the United States provided more impetus for a federation of all British North American colonies. By 1864, constitutional conferences developed a detailed proposal for a Canadian confederation. This proposal was further refined in a conference in London in 1866–1867 and lead to the adoption of the British North American (BNA) Act 1867 (Imp). In 1982, the BNA was renamed as the Constitution Act 1867, with section 92A added to give the provinces greater control over nonrenewable natural resources.
- 20.
For a general discussion, see Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (Hart 2011). According to Quick and Garran, this clause appeared in the Commonwealth Bill of 1891 as follows:
All powers which at the date of establishment of the Commonwealth are vested in the Parliaments of the several Colonies, and which are not by this Constitution exclusively vested in the Parliament of the Commonwealth, or withdrawn from the Parliaments of the several States, are reserved to, and shall remain vested in, the Parliaments of the States respectively.
- 21.
See John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (LexisNexis Butterworths, 2015).
- 22.
For the point on efficiency and competition, see Ugo Mattei, ‘Efficiency in Legal Transplants: An Essay in Comparative Law and Economics’ (1994) 14 International Review of Law and Economics 3, 10–11.
- 23.
Section 94A was an amendment to the original Constitution, added in 1964.
- 24.
See Reference Re Same-Sex Marriage (2004) 3 SCR 698, para 34. Cited in Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Hart, 2015) 145.
- 25.
For the origin of this doctrine, see Hodge v The Queen (1883) 9 App Cas 117.
- 26.
Webber, The Constitution of Canada, 145. Another key difference between Canada and Australia is accentuated by the regional diversity that Quebec provides. Australia and the United States are in this sense territorial federations, while Canada is a cultural one. See Thomas O Hueglin, Comparative Federalism: A Systematic Inquiry (University of Toronto Press Incorporated, 2006).
- 27.
Attorney General of Nova Scotia v Attorney General of Canada (1951) SCR 31 (The Nova Scotia Interdelegation Case).
- 28.
Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Hart, 2015) 169–70. Notwithstanding there is ‘administrative interdelegation’ where both levels delegate their powers to an administrative agency, and there is ‘incorporation by reference’ where one level incorporates the rules applied by the other level. Similar arrangements are used to coordinate action where there is jurisdictional overlap.
- 29.
There are more enumerated powers in other parts of these Constitutions. This list focuses on the concurrency aspects in Canada and Australia.
- 30.
Although in the United States, there was a return to an increase in the ratio as early as 2009.
- 31.
See, for example, Erwin Chemerinsky, ‘The Federal Revolution’ (2001) 31 New Mexico Law Review 7.
- 32.
- 33.
Thomas O Hueglin, Comparative Federalism: A Systematic Inquiry (University of Toronto Press, 2006) Chap. 2.
References
Bagehot, Walter, The English Constitution (Champan and Hall, First ed, 1867).
Cardozo, Benjamin, ‘Law and Literature’ (1925) 14 Yale Review 699.
Chemerinsky, Erwin, ‘The Federal Revolution’ (2001) 31 New Mexico Law Review 7.
Cox, Gary W, The Efficient Secret: The Cabinet and the Development of Political Parties in Victorian England (Cambridge University Press, 2005).
Ewald, William, ‘Comparative Jurisprudence II: The Logic of Legal Transplants’ (1995) 43(4) The American Journal of Comparative Law 489.
Hueglin, Thomas O, Comparative Federalism: A Systematic Inquiry (University of Toronto Press Incorporated, 2006).
Kennedy, W P M, ‘The Judicial Process and Canadian Legislative Powers’ (1940) 25(2) Washington University Law Review 215.
Kosko, Bart, ‘Fuzziness vs Probability’ (1990) 17 International Journal of General Systems 211.
Lefroy, A H F, Canada’s Federal System (The Lawbook Exchange, 2006).
Madison, James, ‘The Federalist No 45: “The Alleged Danger from the Powers of the Union to the State Governments Considered”” in Alexander Hamilton, James Madison and John Jay (eds), The Federalist (Barnes & Noble Classics 2006).
Mattei, Ugo, ‘Efficiency in Legal Transplants: An Essay in Comparative Law and Economics’ (1994) 14 International Review of Law and Economics 3.
Maurice Adams and Dirk Heirbaut (eds), The Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke (Hart Publishing, 2014).
Nelken, David and Johannes Feest, Adapting Legal Cultures (Bloomsbury Publishing, 2001).
Posner, Richard, Law and Literature: A Misunderstood Relation (Harvard University Press, 1988).
Quick, John and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (LexisNexis Butterworths, 2015).
Reisman, David A, The Social Economics of Thorstein Veblen (Edward Elgar, 2012).
Saunders, Cheryl, The Constitution of Australia: A Contextual Analysis (Hart, 2011).
Scalia, Antonin, A Matter of Interpretation (Princeton University Press, 1997).
Tushnet, Mark, The Constitution of the United States of America: A Contextual Analysis (Hart Second ed, 2015).
Van Hoecke, Mark, Law as Communication (Hart Publishing, 2002).
Veblen, Thorstein, The Theory of the Leisure Class: An Economic Study of Institutions (Penguin, 1994).
Watson, Alan, Legal Transplants: An Approach to Comparative Law (University of Georgia Press, 1993).
Webber, Jeremy, The Constitution of Canada: A Contextual Analysis (Hart, 2015).
Weber, Max, Economy and Society: An Outline of Interpretive Sociology (University of California Press, 1978).
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Gussen, B. (2019). Case Study: The United States, Canada, and Australia. In: Axial Shift. Palgrave Macmillan, Singapore. https://doi.org/10.1007/978-981-13-6950-6_12
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