Conflict Resolution
in an Emerging Multi Lateral World

Federalism and Confederalism

Julian Schofield
Concordia University, 2003 
[from Lecture Notes on Federalism and Confederalism - Julian Schofield]

Federalism - definition & map
Federalism - benefits
Ten Yardsticks of Federalism
Distinguishing between federal and confederal systems
Distinguishing between federal and unitary systems

Federalism (definition): a constitutional division of power between one general government (that is to have authority over the entire national territory) and a series of sub national governments (that individually have their own independent authority over their own territories, whose sum total represents almost the whole national territory)

The non-sub-national territories include foreign possessions, strategic frontier areas, and national capital regions (New Delhi, Washington, DC, Brasilia, Mexico City).

In a federal system, centralization and secession are ruled-out.

Shorthand definition: "an indestructible union of indestructible units".

Federal constitution (definition): a political agreement that explicitly admits the existence of conflicting interests among the component territorial communities and commits them to seek accommodation without outvoting the minority and without the use of force.

Federalism is not fixed – it is a process that is in perpetual negotiation: some issues are not currently recognized, some are soluble, and some are currently insoluble.

Amendment formula: set an equilibrium by not being too difficult or too easy: EG: US: 2/3 national legislature and ¾ of state legislatures.

Map:

There are about 20 federal systems in the world, a clear minority, but they cover over half the world’s land mass.

North America: Canada, United States;

Latin America: Mexico, Argentina, Brazil, Venezuela;

Europe: Germany, Austria, Switzerland (Russia’s constitutional status is debatable).

Asia-Pacific: India, Pakistan, Myanmar, Australia, and Malaysia;

Africa: Nigeria, Libya, Tanzania, Cameroun.

Thomas Jefferson, and others, have argued that federalism tends to be adopted by large states to facilitate administration.

Not all sub-national organizations are rooted in federalism: In the US there is one federal government, 50 unitary state governments, and a further 90,000 self-governing units (eg: municipalities, counties, school districts).

Federalism - benefits

(1). Protection against external pressures: federal defense is a defense against divide and conquer.

(2). Concentrating military and diplomatic resources into a common pool.

(3). Economic benefits from a larger market (economic rationales are insufficient – the same could be achieved by a customs union). For federalism to be attainable, there must be "mutual compatibility of main values."

(4). Means of preserving national unity: EG: Reorganization of states along linguistic lines may save India; 1968 Federal state of Czechoslovakia did not survive.

Ten Yardsticks of Federalism (QTC: Canada):

1-4: Distinguishing between federal and confederal systems):

(1). Has the central authority exclusive control over diplomacy and defense as befits a nation-state in its relations with other nation-states?

The federal government has the authority to represent its constituent parts internationally, including such acts as declaring war, making treaties, and commercial relations with foreign states. 

EG: Current issue in the states are the fact that the US supreme court has been striking down as illegal embargoes by individual municipalities against foreign exporters whose domestic politics they find repugnant.

EG: The Quebec Government, in 1967, set-up a Ministry of Intergovernmental Affairs which, in practice, had opened relations with foreign governments.

EG: Some German states, such as Bavaria, have direct diplomatic representation with France and the Vatican.

EG: The Swiss Army is commanded only in wartime; in peacetime the federal government is prohibited from maintaining troops.

(2). Is the federal union constitutionally immune against dissolution by secession?

EG: The extant Soviet, Yugoslav, and 1957 Burmese constitutions recognized secession.

(3). Is the exercise of the central authority as it reaches all citizens directly independent of the individual approval and resources of the component units?

Central authority has its own right of taxation to fund its activities. The sub-national governments may attempt to tax institutions permitted by the national level of government – these forms of overlapping sovereignty should therefore be specified.

Another issue is that of sub-national representation at the national level: in the case of Canada, it is the Senate. The representatives may be appointed or directly elected.

Another important issue is the dependence of the federal government upon the sub-national region, determined by the proximity of the national capital to a sub-regional unit. Often, to escape such influence, insulated national capital regions are set-up: Washington, DC.

QTC: Does Ottawa’s location bias federal politics?

(4). Who has the ultimate control over amendments to the federal constitution?

If changes to the constitution relies on the unanimity of all the component units, then the confederation of states has not yet transformed itself into a federal system. On the other hand, if only the federal authority is required for changes to the national constitution, then the system is unitary.

(5-10: Distinguishing between federal and unitary systems):

(5). Are the component units immune to elimination of their identity and authority?

Hard to distinguish because unitary and federal systems vary widely: in unitary systems, there exist indestructible local political units (guaranteed autonomy or efficient local administration), just as there are temporary political units in federal systems. The indestructibility refers to forces from outside rather than from within a political unit.

Indestructibility of units is relative: historically, most federal states did not come from an association of local communities, but were formed from above: Canada, US. Switzerland is an example of federalism from below.

EG: Mexico: justify the sub-division of a political units into a new state: requires population and resource criteria, and majority national approval if locally approved, but 

Systems in which it is easy for the national government to regroup political units is referred to as administrative federalism (as opposed to the federal bargain).

(6). Is the collective sharing in federal rule making adequately secured by equal representation of unequal units in a bicameral system (residual and significant powers)?

Specification of the division of powers between the provincial and federal governments, and whether the national or sub-national units have tangible powers. How much and how little power are legitimate?

EG: In Canada, the powers are enumerated to the provinces, and the residual powers are left for the national government; the reverse is true for the US. Other states, such as India and Pakistan enumerate powers in three lists: Union List, Federal List, and Concurrent List (shared powers).

(7). Is there bicameralism and equal representation of unequal states?

Proportional representation of unequal states at the national level. EG: US, Australia, Switzerland, Latin-America; Contrast: Canada and parliamentary systems, the Senate has (lesser) veto powers (4 groupings, each with 24 senators, plus Newfoundland with 6 reps); India; Nigeria.

Pakistan and Cameroun are unicameral federal states (dangerous for one state to have an advantage in a two-state system).

(8). Are there two independent sets of courts, one interpreting and adjudicating the federal laws and the other the state laws? (Two Sets of Courts).

Important for some analysts: EG: Soviet Union disqualified as it does not have two judicial systems. In reality: EG: Only US, Mexico, and Brazil qualify (even here, the federal Supreme Court is the final court of appeal for both levels).

This is not a reasonable test to pass, though its absence does raise some interesting issues.

(9). Is there an impartial agency that ensures that the division of powers is respected? 

There are few examples aside from the power of the (EG:) US’s supreme court regarding influence over Constitutional affairs. In European polities, there is more reluctance to grant these forms of authority that override popular sovereignty. Until 1949, Canada had the Judiciary Committee of the Privy Council in London to administer constitutional issues.

(10). Is the territorial division of authority clear?

Very often it is not clear (there are frequent overlaps):

(a). The federal monopoly in the field of foreign policy and defense.

International relations today have greater implications for socio-economic issues than they did a century ago, and therefore, it seems inefficient to exclude sub-national governments from the decision-making process. Control over drug trafficking and fisheries, which may be sub-national responsibilities, may require national involvement.

EG: Case in 1917 of Missouri hunters sued the US government for making agreements with UK on Canada’s behalf to stop shooting at passing Canada geese. The federal power won the case.

There are cases where sub-national authorities possess their own armed forces: EG: US (Army National Guard – changed its status in 1916 to reserve component of the National military) and Switzerland. 

(b). Emergency provisions.

Emergency powers permit national governments to suspend the normal operation of the federal constitution, thus temporarily suspending the authority of sub-national governments as is required. The dilemma is that these provisions may become abused and employed in such a fashion as to undermine the authority of the sub-national political unit.

EG: India has made frequent use of its emergency powers. While the emergency powers were created to manage external national threats, they have also come to permit intervention in cases of financial collapse and civil disorder problems, broadly defined. President’s rule in Kashmir; Central government’s removal of government of communists in Kerala.

EG: In Canada, the Constitution permits the central government to veto or disallow provincial legislation in times of emergency.

QTC: Did this happen in Quebec in October 1970?

(c). The concurrent power.

Overlap powers: usually the federal government is given supremacy over provincial governments.

EG: Canada’s concurrent powers include control over immigration and agriculture. 

(d). The elastic or coefficient clauses.

In the US Constitution (Art 1, Sect 8), the federal government may pass laws that have universal applicability in order to implement its remaining powers. 

(e). The lack of verbal precision (witting or unwitting).
EG: What is a distinct society?

QTC: What are the minimum yardsticks you need for a federal system?

(1) Has the central authority exclusive control over diplomacy and defense as befits a nation-state in its relations with other nation-states?

The federal government has the authority to represent its constituent parts internationally, including such acts as declaring war, making treaties, and commercial relations with foreign states. 

eg: Current issue in the states are the fact that the US supreme court has been striking down as illegal embargoes by individual municipalities against foreign exporters whose domestic politics they find repugnant.

eg: The Quebec Government, in 1967, set-up a Ministry of Intergovernmental Affairs which, in practice, had opened relations with foreign governments.

eg: Some German states, such as Bavaria, have direct diplomatic representation with France and the Vatican.

eg: The Swiss Army is commanded only in wartime; in peacetime the federal government is prohibited from maintaining troops.

(2) Is the federal union constitutionally immune against dissolution by secession?

e.g: The extant Soviet, Yugoslav, and 1957 Burmese constitutions recognized secession.

(3) Is the exercise of the central authority as it reaches all citizens directly independent of the individual approval and resources of the component units?

Central authority has its own right of taxation to fund its activities. The sub-national governments may attempt to tax institutions permitted by the national level of government – these forms of overlapping sovereignty should therefore be specified.

Another issue is that of sub-national representation at the national level: in the case of Canada, it is the Senate. The representatives may be appointed or directly elected.

Another important issue is the dependence of the federal government upon the sub-national region, determined by the proximity of the national capital to a sub-regional unit. Often, to escape such influence, insulated national capital regions are set-up: Washington, DC.

(4) Who has the ultimate control over amendments to the federal constitution?

If changes to the constitution relies on the unanimity of all the component units, then the confederation of states has not yet transformed itself into a federal system. On the other hand, if only the federal authority is required for changes to the national constitution, then the system is unitary.

Distinguishing between federal and unitary systems - Questions to Consider:

(5) Are the component units immune to elimination of their identity and authority?

Hard to distinguish because unitary and federal systems vary widely: in unitary systems, there exist indestructible local political units (guaranteed autonomy or efficient local administration), just as there are temporary political units in federal systems. The indestructibility refers to forces from outside rather than from within a political unit.

Indestructibility of units is relative: historically, most federal states did not come from an association of local communities, but were formed from above: Canada, US. Switzerland is an example of federalism from below.

Systems in which it is easy for the national government to regroup political units is referred to as administrative federalism (as opposed to the federal bargain).

(6)  Is the collective sharing in federal rule making adequately secured by equal representation of unequal units in a bicameral system (residual and significant powers)?

Specification of the division of powers between the provincial and federal governments, and whether the national or sub-national units have tangible powers. How much and how little power are legitimate?

eg: In Canada, the powers are enumerated to the provinces, and the residual powers are left for the national government; the reverse is true for the US. Other states, such as India and Pakistan enumerate powers in three lists: Union List, Federal List, and Concurrent List (shared powers).

(7). Is there bicameralism and equal representation of unequal states?

Proportional representation of unequal states at the national level. 

eg: US, Australia, Switzerland, Latin-America; Contrast: Canada and parliamentary systems, the Senate has (lesser) veto powers (4 groupings, each with 24 senators, plus Newfoundland with 6 reps); India; Nigeria.

Pakistan and Cameroun are unicameral federal states (dangerous for one state to have an advantage in a two-state system).

(8). Are there two independent sets of courts, one interpreting and adjudicating the federal laws and the other the state laws?  

Important for some analysts: eg: Soviet Union disqualified as it does not have two judicial systems. In reality: eg: Only US, Mexico, and Brazil qualify (even here, the federal Supreme Court is the final court of appeal for both levels).

This is not a reasonable test to pass, though its absence does raise some interesting issues.

(9)  Is there an impartial agency that ensures that the division of powers is respected? 

There are few examples aside from the power of the  US’s supreme court regarding influence over Constitutional affairs. In European polities, there is more reluctance to grant these forms of authority that override popular sovereignty. Until 1949, Canada had the Judiciary Committee of the Privy Council in London to administer constitutional issues.

(10). Is the territorial division of authority clear?

Very often it is not clear (there are frequent overlaps):

(a). The federal monopoly in the field of foreign policy and defense.

International relations today have greater implications for socio-economic issues than they did a century ago, and therefore, it seems inefficient to exclude sub-national governments from the decision-making process. Control over drug trafficking and fisheries, which may be sub-national responsibilities, may require national involvement.

eg: Case in 1917 of Missouri hunters sued the US government for making agreements with UK on Canada’s behalf to stop shooting at passing Canada geese. The federal power won the case.

There are cases where sub-national authorities possess their own armed forces: 

eg: US (Army National Guard – changed its status in 1916 to reserve component of the National military) and Switzerland. 

(b). Emergency provisions.

Emergency powers permit national governments to suspend the normal operation of the federal constitution, thus temporarily suspending the authority of sub-national governments as is required. The dilemma is that these provisions may become abused and employed in such a fashion as to undermine the authority of the sub-national political unit.

eg: India has made frequent use of its emergency powers. While the emergency powers were created to manage external national threats, they have also come to permit intervention in cases of financial collapse and civil disorder problems, broadly defined. President’s rule in Kashmir; Central government’s removal of government of communists in Kerala.

eg: In Canada, the Constitution permits the central government to veto or disallow provincial legislation in times of emergency.

(c). The concurrent power

Overlap powers: usually the federal government is given supremacy over provincial governments.

eg: Canada’s concurrent powers include control over immigration and agriculture. 

(d). The elastic or coefficient clauses.

In the US Constitution (Art 1, Sect 8), the federal government may pass laws that have universal applicability in order to implement its remaining powers. 

(e). The lack of verbal precision (witting or unwitting).
eg: What is a distinct society?