Introduction to the Study of the Law of the Constitution

Chapter III: Parliamentary Sovereignty and Federalism

Law_051-100.indd 73 1/27/12 1:14 PM Subject. Federalism best un* derstood by studying constitution of United States. Chapter III PARLIAMENTARYSOVEREIGNTY AND FEDERALISM M y present aim is to illustrate the nature of Parliamentary sovereignty as it exists in England, by a comparison with the system of government known as Federalism as it exists in several parts of the civilised world, and especially in the United States of America.1 There are indeed to be found at the present time three other noteworthy examples of federal government-the Swiss Confederation, the Dominion of Canada, and the German Empire.2 But while from a study of the institutions of each of these states one may draw illustrations which throw light on our subject, it will be best to keep our attention throughout this chapter fixed mainly on the institutions of the great American Republic. And this for two reasons. The Union, in the first place, presents the most completely developed type of federalism. All the features which mark that scheme of government, and above all the control of the legislature by the Courts, are there exhibited in their most salient and perfect form; the Swiss Confederation3 , moreover, and the Dominion of Canada, are more or less 1 On the whole subject of American Federalism the reader should consult Mr. Bryce's American Commonwealth, and with a view to matters treated of in this chapter should read with special care vol. i. part i. 2 To these we must now (19QS) add the Commonwealth of Australia. (See Appendix, Note IX., Australian Federalism), [and see further the South Africa Act, 1909, 9 Ed. VII. c. 9]. 3 Swiss federalism deserves an amount of attention which it has only of recent years begun to receive. The essential feature of the Swiss Commonwealth is that it is a genuine and CHAPTER l/1 73 Law_051-100.indd 74 1/27/12 1:14 PM LAW OF THE CONSTITUTION copied from the American model, whilst the constitution of the German Empire is too full of anomalies, springing both from historical and from temporary causes, to be taken as a fair representative of any known form of government. The Constitution of the United States, in the second place, holds a very peculiar relation towards the institutions of England. In the principle of the distribution of powers which determines its form, the Constitution of the United States is the exact opposite of the English constitution, the very essence of which is, as I hope I have now made dear, the unlimited authority of Parliament. But while the formal differences between the constitution of the American Republic and the constitution of the English monarchy are, looked at from one point of view, immense, the institutions of America are in their spirit little else than a gigantic development of the ideas which lie at the basis of the political and legal institutions of England. The principle, in short, which gives its form to our system of government is (to use a foreign but convenient expression) "unitarianism ," or the habitual exercise of supreme legislative authority by one central power, which in the particular case is the British Parliament . The principle which, on the other hand, shapes every part of the American polity, is that distribution of limited, executive, legislative , and judical authority among bodies each co-ordinate with and independent of the other which, we shall in a moment see, is essential to the federal form of government. The contrast therefore between the two polities is seen in its most salient form, and the results of this difference are made all the more visible because in every other respect the institutions of the English people on each side the Atlantic rest upon the same notions of law, of justice, and of the relation between the rights of individuals and the rights of the government, or the state. We shall best understand the nature of federalism and the points in which a federal constitution stands in contrast with the Parliamentary constitution of England if we note, first, the conditions essential to natural democracy, but a democracy based on Continental, and not on Anglo-Saxon, ideas of freedom and of government. The constitution of the Commonwealth of Australia contains at least one feature apparently suggested by Swiss federalism. See Appendix, Note IX., Australian Federalism. PART! 74 Law_051-100.indd 75 1/27/12 1:14 PM Conditions and...