What federal government is

"Federal Government", by KC Wheare

 By K C Wheare

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 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 Canada or 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 the 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 alone, 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 government 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 of 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 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 power of separate regualation 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 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 it 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. Switzerland has no institution performing this function completely and is to this extent imperfectly federal.

These disputes about the limits of the 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 co-ordinate division of governmental functions – and I have implied that 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, 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 Provinces 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.

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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 a 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.

This article was first published by Federal Union in 1940. K C Wheare was a Fellow of All Souls College and Gladstone Professor of Government and Public Administration at the University of Oxford.

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