Federalism

Claude Bélanger,
Department of History,
Marianopolis College

Federalism is a system of government where two levels of government exist, each sovereign in its sphere of jurisdiction. The federal or central level takes care of all of those things that are common to the whole of the country while the other level of government (provincial, state or canton) has jurisdiction over those things that are of local concern. Federalism is to be contrasted to the other two types of political systems: the unitary (sometimes called legislative union in Canada) and confederal systems. The unitary system is characterised by the fact that sovereignty resides exclusively with the central government and that local governments, when they exist, are entirely subordinated to the central authority. In the confederal system, sovereignty entirely resides with the member-states and the central government that has been created is subordinated to them. In a confederation, because the member-states have retained the entirety of their sovereignty, they may pull out of the union at any time. The federal system borrows some features from the other two systems: from the unitary system it adopts the idea that the central government must have some sovereign powers while it retains from the confederal system the principle that the local governments have preserved for themselves some sovereign powers. This is why the main feature of federalism is the distribution of sovereignty between two levels of government in such a way that neither level is entirely subordinated to the other.

Federalism is usually adopted in countries that display differences of climate, geography, religion, language, culture and economies; it is especially suited for multinational and multicultural states that wish to preserve these characteristics. The system is also found in countries that are too large for a single government to handle effectively. Essentially, the federal arrangement, or compact, is the result of conflicting pressures among its constituting parts. On the one hand, groups have found good reasons to join with others and to form with them a new political entity; this is often done for defence (they may fear some common enemy), or for economic reasons, as joining with others may enhance their hopes of prosperity; sometimes, there has been in the past common experience of union together and, always, there are some common shared values. On the other hand, the same groups who wish to unite find equally good reasons to remain apart perhaps because they have had a long heritage of self-government that they do not wish to forsake, or because they take pride in their group distinctiveness and wish to retain their individuality. Federalism is so designed as to reconcile these conflicting feelings. The groups will agree to come together on those things that they deem to be in their mutual interest, and entrust to the central government power to act in all such cases while, at the same time, they will continue to exist separately and retain for themselves full power over the things that they wish to continue to control and which are usually related to their individuality. This is why federalism has sometimes been described, in a broad sense, as an organisational system that unites separate groups within a single political system so as to permit each group to maintain its fundamental political integrity. Thus, essentially, the federal system is adopted where it is felt that the preservation of the individuality and separateness of the constituent parts is as important as the preservation of the nation as a whole. In some circumstances, it might even be argued that the preservation of the nation as a whole is dependent on the maintenance of the constituent parts: one would not exist if the other was not guaranteed.

Thus, federalism is the result of centralising and decentralising forces which are at play at the time of the formation of the union and that continue to affect the union long after the system has been created. When the reasons to come together are extremely powerful, the tendency is to entrust the central government with large and extensive powers, indeed to make it the "main" government. When the reasons to remain apart are stronger than the reasons to come together, the result will be that the local governments will be entrusted with the largest powers. Each federation finds its balance somewhere along the line and the resulting distribution of power between the two levels of government is witness to the respective strength of the centralising and decentralising forces at the time of the union. So long as some sovereignty is deposited in each level of government, then we are dealing with a federal system.

In federations there is no standard distribution of powers since each country must find its own balance between the centralising and decentralising forces and, in this respect, no two countries are quite alike. Thus, comparisons between the distribution of powers in federal systems of different countries are useless to determine their federal nature and can only be used to measure more adequately whether one's federal system is more centralist than others are. Yet, notwithstanding the above, there remains a certain pattern in the distribution of powers in many federations. At a minimum, the central government will receive the external signs of sovereignty (foreign affairs, treaties and defence) and economic powers of an international or interprovincial nature; each level is also given an autonomous tax base. The rest is subjected to a process of bargaining and power allocation whose ultimate outcome is determined by the respective strength of the centralising and decentralising forces at the time of the union.

In Canada's case, federalism was, without a doubt, the result of pressures from Quebec, and to a lesser extent of the Maritime colonies. Quebec wished to share with the other colonies in the development and the resources of the continent; the province also desired to gain access to the market of the other provinces and to achieve the security that a larger union would provide for all. Quebecers were not unmoved by visions of creating, in the northern half of the continent, a vast dominion that they would share with their anglophone compatriots.  But, at the same time, Quebec greatly feared the minority position in which a unitary state would have placed it. The people of Quebec took pride in their separateness, in their sense of nationality. They wished to preserve their faith, their language, their laws and their culture, all essential constituting elements of their distinctiveness, of their existence as a separate people; above anything else, these components they wished to preserve and to safeguard in the future. Ultimately, they thought that their separate or distinct existence would be best assured by joining together with the other provinces in a union that recognised and supported their autonomy. For better or for worse, they believed that the survival of French Canada was linked to the creation of a federal system, that as long as Canada would continue to exist French Canada would also continue to survive.

The federal system was thus adopted as the only acceptable solution despite the fact that many of the Fathers of Confederation (John A. Macdonald and George Brown for example) did not believe the system practicable and thus opposed it and would have preferred a unitary state. The example of the American Civil War, which struck at the heart of the problems inherent in federalism, led the Fathers of Confederation to adopt a particularly centralised form of federalism, leading one expert in federal governments, K. C. Wheare, to call the Canadian system "quasi-federal".

It has been said that federalism, if applied properly, is incompatible with dictatorship as dictatorship implies the absolute control of power by one somewhere while federalism diffuses power between various units. Federalism also denies the application of simple majority rule since the purpose of federations is to recognise that the rights of small units have to be acknowledged and respected. In essence, by creating local units, and empowering them with sovereignty, the federal system creates a majority out of what would have been otherwise a minority; such a group can adopt for itself within its sphere of jurisdiction the legislation that it desires to assure its own survival and development. The federal system is difficult and costly to operate; it frequently leads to tension but provides, as well, the mechanism to resolve these. It is a system particularly suited for large and diverse countries where cultural, religious and linguistic differences are pronounced. It makes of peoples, who might otherwise be strangers, if not enemies, partners in development and allows them to co-exist in peace while learning from one another.
 

Main features of federalism

The following are the main features of federalism:  

1. Two levels of government created and protected by the Constitution, with sovereignty stemming neither from above, nor from below, but distributed between the two, in some fashion by the Constitution.
2. Neither level of government is entirely subordinated to the other; each has powers and these are guaranteed by the Constitution.
3. Supremacy rests in the Constitution. Formal changes in the relative position, or powers, of each level of government cannot be achieved by one level alone, but are subjected to some form of mutual consent; the method for effecting such changes (amendments) is outlined in the Constitution.
4. Both levels of government enact legislation affecting the same citizens; the central government enact laws in certain fields for the whole (or possibly part) of the country; the provincial government enacts legislation on other subjects for the residents of their respective provinces.
5. The legislation of the provincial government can only apply to the people of their province. Provincial law does not have the power of extraterritoriality.
6. Overlapping of jurisdiction (so-called "grey areas") is inevitable within a federal system. When such overlapping exists, there is a need to determine, in the Constitution, which of the two levels of legislation shall prevail if the laws are found in contradiction.
7. Federal constitutions must be, at least, partly written so that the allocation of fields of jurisdiction is made clear and guaranteed. Such constitutions are also said to be rigid since, for the most part, it would require more than a simple majority of the legislatures to change it.
8. Jurisdictional disputes between the two levels of government are decided upon formally by a Supreme or Constitutional court. Such a Court finds its existence guaranteed in the Constitution. Ordinarily, the court is also beyond the control of any one level of government.
9. Disputes may also be resolved by bypassing the court system if the two levels of government so desire; the issues can be resolved politically or administratively through processes and institutions of intergovernmental co-operation.
10. The interests of the member-states in a federation are not only protected by a formal distribution of power, guaranteed by the constitution, but, as well, by some form of local representation in the institutions of the central government. In Canada, this is done in the Senate and, to a lesser extent, in the distribution of federal cabinet positions. Where local interest is not well represented in the institutions and processes of the central government, the role of the provincial governments, to carry out that task, is that much more emphasised and important.
11. Each level of government is not only allocated a list of fields of jurisdiction but, as well, given autonomous revenue sources to finance its operations. A government without revenues of its own, would not really be a sovereign entity.
12. Each of the two levels of government has substantially complete governing institutions with power to modify these unilaterally.
13. Federal countries, especially lately, have developed elaborate structures and devices of intergovernmental co-operation, blurring increasingly the division of powers that normally separates them. In the process they have multiplied "grey areas" and rendered it difficult for citizens to determine who is responsible precisely for what… Such intergovernmental bodies, frequently working in the background, away from the scrutiny of the public, have lessened the control that citizens wish to have over the system.
14. Some federations, such as Canada, have developed, through the existence of the central government, an elaborate system through which the wealthy regions contribute substantially for the support of the less fortunate parts of the country. In Canada's case, this is done principally through the equalization payments and shared costs programmes.

© 1998 Claude Bélanger, Marianopolis College