One of the many benefits of having practised and taught constitutional law is you will possess insights into matters of current controversy, not just in your own jurisdiction but in the historically ‘parent’ jurisdictions that inspired one’s own, in my case, the Commonwealth of Australia.
One of my first questions to those new to Australian constitutional law is, "why do we speak in terms of the nation being constituted by a basic law?" and "who is doing the constituting?" of the nation-state. These are not idle questions. While Australia was a rugby and cricket team before it was a federated nation, Australia only has a legal existence because its Constitution, literally, constitutes the Commonwealth of Australia. How and why this new nation was constituted are matters of critical significance.
[That Australia has a (very) plainly written Constitution, despite its origins as a British colony governed by British statutes and the reception of the English common law, is, actually, the triumph of a Roman Law inheritance in our part of the English speaking world. In Roman Law, what is the law to be obeyed by ruler and ruled is always codified in clear if exhaustive terms for application by the Magistrate and for the understanding of all who will be subject to it - and what is codified is super-precedential over whatever else one may think the law should be, whether as a matter of some custom, some common law, or stare decisis. In this sense, a written Constitution is the ultimate Roman Law institution as, for a federation, it will reflect (in the case of the Crown), or will be the source of, all legitimate power and provide the fundamental rule under which all who are within its jurisdiction must live. That the Romans, too, like the Church, possessed a federal governing culture codified by extensive legal codification, wherein the Church and then the Holy Roman Empire were, themselves, masterpieces of monarchical and hierarchical federalism (whether governing through princes or bishops), is a fascinating discussion for another day. One must, nonetheless, bear in mind that ideas of federalism and federation derive from the same Latin root, foedus for treaty and foedera for treaties of alliance, indicating our juridical debt to a Roman history of reducing to writing, terms solemnly agreed, according to which different places and peoples would unite in alliance and common cause under a shared legal order.]
As Australians, with our “WashMinster Constitution", wherein American-style Federalism (the Washington part) coexists with British parliamentary institutions and norms (the Westminster part), we have to always acknowledge the various inspirations for own basic law, such as the Romans and, of course, the British. The Australian founding fathers in the Federation movement in the 1890s were inspired by contemporary Canadian and American experience, and to some degree that of the Swiss republic. In particular, there was high regard among the Australian founders for the Philadelphia Convention of 1787 and the genius of the American founding generation, in particular Alexander Hamilton and James Madison. Like the American founders, the drafters of the Australian Constitution in the 1890s were conscious that they were uniting disparate British colonies who inhabited a massive island continent plus Tasmania (The distance between Sydney and Perth is greater than that between London and Moscow). In the words of Sir Edmund Barton, the first Prime Minister of Australia and later a Justice of the first High Court, "a nation for a continent and a continent for a nation". The new national Constitution and the national government for which it provided were particularly required to ensure the national security and economic prosperity of those who would become the Australian nation. At the same time, like their American inspirations, the colonial Australians adopted Federalism as the device by which the several colonial polities would unite – or ‘federate’ – as one “one indissoluble Federal Commonwealth under the Crown” per the Constitution's preamble.
The genius of Federalism is that it allows for a geographically and disparately, and even quite differently, populated, nation-state, to hold together, despite the inevitable frictions between its members. Federalism literally provides unity in diversity. Federalism provides a mechanism for people to share a common nationality without unduly sacrificing the big to the small, or the rural to the urban. By allowing representation by differentiated seats and territories, Federalism assures the localist that his or her membership of the larger nation does not negate the right of the province to govern itself and, also, assures that the smaller region's voice in national affairs will count for something, and not be drowned out – or dictated to – by those who may form a notional electoral majority.
The concern of Federalism is to establish a functioning and federating polity that distributes power along the lines of geographic territory and not the national populations per se. Its primary concern is to keep the federated state together, to keep 'those compacted in the compact’, to borrow from a great judge’s words. Democracy in some form is important but it is a specific form of democracy within the constituent provinces of the Federal structure and not democracy across the Federal structure.
[The alternative to Federalism is not some harmonious common democracy but, likely, a brief dictatorship of the urban majority, which will be followed, in due course, by provincial rebellions.]
Republican Federalism
It has been hard for the curious observer, with even the most basic knowledge of civics, to avoid noticing, in the American context, numerous appeals by the political media and Democratic partisans to something called “the national popular vote”. I have catalogued such irrelevant appeals to the "popular vote" on Twitter.
These appeals are usually followed by complaints regarding the asserted unfairness of the American federal compact, whereby, since the United States was founded, each State elects two senators, regardless of whether a State is a large woke-polis or some small rural enclave of hicks, “rubes”, or townies.
However, these results are Federalism doing its work in an American republican context, and, in particular, ensuring that the many smaller and rural States do not have their voices drowned out by the few large and urbanised States.
Indeed, in the case of the American founders, they purposely:
• established the United States of America (not the United People of America...one presumes the States were united for a reason);
• enshrined equal senatorial representation in the US Constitution: “The Senate of the United States shall be composed of two Senators from each State” (Article I, Section 3(1));
• established equal senatorial representation to the degree that no American state “without its Consent, shall be deprived of its equal Suffrage in the Senate” (Article V), ie where there any doubt as to the importance of Federalism, the founders created a super-resistant amendment process if ever there was one; and
• established an electoral college (membership determined by each State’s own elections for presidential electors) to, in turn, elect the President and Vice-President, who are the United States’ only two nationally elected executive officers (Art II, Section 1). And if the electoral college is deadlocked and cannot elect a President and Vice-President, then it falls to the House of Representative...which, in the best traditions of constitutional federalism, then votes for President and Vice-President by state delegations and not by party line or any sense of a popular vote, per the Twelfth Amendment.
The concern of the American founders was to ensure that the component States remained united, in a form of government robust enough to survive and govern an expanding American territory, without allowing populated urban centres to dominate regional and rural states. The secessionist movements at the time of the war of 1812 and especially the Civil War show just how dangerous it is to expect that federating nations will always be able to hold together.
Monarchical Federalism
The wisdom of the Federalist proposition was accepted by Australia and Canada, which are both constitutional monarchies and federal nation-states. Both adopted the bicameral British Westminster parliamentary system, in which there are two Houses, as a lower elected House (House of Representatives (Australia), as well as a Senate as a House of review.
In the House, the nation is divided into electoral districts/seats/constituencies/ridings on the basis of representing a given territory containing electors for that seat. These seats' boundaries are often redrawn in order to meet population shifts and, in Australia’s case, to provide for, roughly, 150,000 residents and 100,000 voters in each seat.
In a Westminster system, the Executive power is vested in the Crown and the Executive (ie the Prime Minister and Ministry) is drawn from whichever party or coalition has the confidence of the lower House.
While the House’s responsiveness to each individual seat’s electors may be the most democratic element of the Westminster system, especially as these seats determine who will form the government, even then it should be noted, that even the most careful drawing of territorial boundaries for each seat will still provoke some grumbling.
With regard to Australia, the Constitution (s.24) guarantees to each of Australia’s Original States (ie New South Wales, Queensland, Victoria, Tasmania, Western Australia, and South Australia) that they will have a minimum of five (5) House seats, regardless of population movements. Given Australia’s population distribution, and any decline in especially the Tasmanian population, the constitutional guarantee of still-sparsely populated Tasmania having at least five House seats may, in due course, become an issue for some. (As a long time support of Tasmania, if this helps keep Tasmania happily within the Australian federation, then I say Federalism is doing its job.) Moreover, House seats boundaries are limited to those of their State, and may not cross State borders, another example of the Federal nature of the Australian Constitution (per s.29).
Moreover, both Australia and Canada have Senates that are populated by senators that represent States or Provinces. In Australia’s case, each of Australia’s States have an equal number of Senators, regardless of population. Indeed, Australia’s constitutional design is so Federal that the Queensland Parliament had a special carve-out, should it wish to, to elect its Senators to represent specific senatorial electorates within that State (s.7), albeit one never exercised. In Canada’s case, the Senate is not even elected but is instead, in effect, appointed by the Crown on the advice of the Prime Minister of the day, to represent designated provinces and regional areas. None of this is democratic per se but, instead, serves the Federalist interests of making sure the federating parts of the nation-state have their voices heard and representatives in the national parliament to protect the interests of their constituent States, provinces, and regions.
Finally, in Australia’s case, the Constitution can only be amended by national referendum (s.128). Even then, a national majority of electors is insufficient – rather, a proposed constitutional amendment must not only win a national popular vote majority but must win a majority of the vote in a majority of the states. There is no more persuasive indicator of Constitutional Federalism than this requirement. The Australian Constitution's provisions for House representation and Senatorial representation also cannot be altered without the consent of the electors of the States that may be affected at the referendum, thereby replicating the United States’ requirements for constitutional amendment in Article V as regards its States.
The process for amending the Canadian Constitution is at least as Federal and, arguably, even more complex than is the case for the Australian Constitution.
The Future of Constitutional Federalism
No one is ever happy to lose an election. Some are even distressed when they win them. Nonetheless, those contesting elections in specific seats and regions are well aware of the legislative offices that they hope to occupy and what specific electors they are seeking to and, if elected, will be serving each day they are in office. And this is the whole point of Constitutional Federalism: when you run for a House seat representing a constituency or district or you run for a Senate seat for a State or a Province, you are running as a candidate to represent that specific territory and its people in an office provided for by a Federal constitution.
Under a Federal Constitution, you are elected as a territorial representative of a constituency or district or State, to serve that territory's people and to represent their interests, however great or small in size or people. You are, expressly and by intent, not elected as some national, partisan, apparatchik-at-large, who is only there to help enact the herd-like will of the “national popular vote”.
Direct democracies may seem, at first glance, fair, depending on whether or not you like the result, but, over time, they fall, inevitably, apart, especially as a few highly populated metropolises overawe the many sparsely populated towns, villages, and hamlets. Overtime, what could have been a common federal citizenship will become a disputatious unitary polity of electoral winners and losers, of rich versus poor, of town versus country, which will, when the aggrieved are denied representation, lead to political fragmentation, if not rebellion. A direct democracy for a large and diverse nation will provoke only resentments and entrench divisions.
Federalism is the ethos as well as the pact that disparate peoples inhabiting large constitutional states have made amongst themselves, in order to share a common national citizenship, while having their own voice and keeping their own patch. It allows for both necessary subsidiarity as well as for a natural loyalty to the larger nation, in the way that Edmund Buke’s ‘little platoons’ help build up the human society.
To borrow from the Americans, out of the many may, indeed, come one, but that for that one to survive times of war, depression and tumult, and to remain unified, then that one must, in its national legislature, accept that it is a unity composed by the many - and all of the many deserve to have their voices heard.
We live in a time of much anger, partisan rancour, and also much emphasis on ‘diversity’ and allowing people to determine their own courses in life. Federalism is thus not the problem – it is the answer. And while we Anglophones will always require strong central governments to secure the nation and protect its interests, we also need space in our national legislatures for those in the small town, the forgotten region, and the small and neglected province, to also have their say, and to ensure that no section of us is lost in the country that belongs to all of us together.
As Australians, with our “WashMinster Constitution", wherein American-style Federalism (the Washington part) coexists with British parliamentary institutions and norms (the Westminster part), we have to always acknowledge the various inspirations for own basic law, such as the Romans and, of course, the British. The Australian founding fathers in the Federation movement in the 1890s were inspired by contemporary Canadian and American experience, and to some degree that of the Swiss republic. In particular, there was high regard among the Australian founders for the Philadelphia Convention of 1787 and the genius of the American founding generation, in particular Alexander Hamilton and James Madison. Like the American founders, the drafters of the Australian Constitution in the 1890s were conscious that they were uniting disparate British colonies who inhabited a massive island continent plus Tasmania (The distance between Sydney and Perth is greater than that between London and Moscow). In the words of Sir Edmund Barton, the first Prime Minister of Australia and later a Justice of the first High Court, "a nation for a continent and a continent for a nation". The new national Constitution and the national government for which it provided were particularly required to ensure the national security and economic prosperity of those who would become the Australian nation. At the same time, like their American inspirations, the colonial Australians adopted Federalism as the device by which the several colonial polities would unite – or ‘federate’ – as one “one indissoluble Federal Commonwealth under the Crown” per the Constitution's preamble.
The genius of Federalism is that it allows for a geographically and disparately, and even quite differently, populated, nation-state, to hold together, despite the inevitable frictions between its members. Federalism literally provides unity in diversity. Federalism provides a mechanism for people to share a common nationality without unduly sacrificing the big to the small, or the rural to the urban. By allowing representation by differentiated seats and territories, Federalism assures the localist that his or her membership of the larger nation does not negate the right of the province to govern itself and, also, assures that the smaller region's voice in national affairs will count for something, and not be drowned out – or dictated to – by those who may form a notional electoral majority.
The concern of Federalism is to establish a functioning and federating polity that distributes power along the lines of geographic territory and not the national populations per se. Its primary concern is to keep the federated state together, to keep 'those compacted in the compact’, to borrow from a great judge’s words. Democracy in some form is important but it is a specific form of democracy within the constituent provinces of the Federal structure and not democracy across the Federal structure.
[The alternative to Federalism is not some harmonious common democracy but, likely, a brief dictatorship of the urban majority, which will be followed, in due course, by provincial rebellions.]
Republican Federalism
It has been hard for the curious observer, with even the most basic knowledge of civics, to avoid noticing, in the American context, numerous appeals by the political media and Democratic partisans to something called “the national popular vote”. I have catalogued such irrelevant appeals to the "popular vote" on Twitter.
These appeals are usually followed by complaints regarding the asserted unfairness of the American federal compact, whereby, since the United States was founded, each State elects two senators, regardless of whether a State is a large woke-polis or some small rural enclave of hicks, “rubes”, or townies.
However, these results are Federalism doing its work in an American republican context, and, in particular, ensuring that the many smaller and rural States do not have their voices drowned out by the few large and urbanised States.
Indeed, in the case of the American founders, they purposely:
• established the United States of America (not the United People of America...one presumes the States were united for a reason);
• enshrined equal senatorial representation in the US Constitution: “The Senate of the United States shall be composed of two Senators from each State” (Article I, Section 3(1));
• established equal senatorial representation to the degree that no American state “without its Consent, shall be deprived of its equal Suffrage in the Senate” (Article V), ie where there any doubt as to the importance of Federalism, the founders created a super-resistant amendment process if ever there was one; and
• established an electoral college (membership determined by each State’s own elections for presidential electors) to, in turn, elect the President and Vice-President, who are the United States’ only two nationally elected executive officers (Art II, Section 1). And if the electoral college is deadlocked and cannot elect a President and Vice-President, then it falls to the House of Representative...which, in the best traditions of constitutional federalism, then votes for President and Vice-President by state delegations and not by party line or any sense of a popular vote, per the Twelfth Amendment.
The concern of the American founders was to ensure that the component States remained united, in a form of government robust enough to survive and govern an expanding American territory, without allowing populated urban centres to dominate regional and rural states. The secessionist movements at the time of the war of 1812 and especially the Civil War show just how dangerous it is to expect that federating nations will always be able to hold together.
Monarchical Federalism
The wisdom of the Federalist proposition was accepted by Australia and Canada, which are both constitutional monarchies and federal nation-states. Both adopted the bicameral British Westminster parliamentary system, in which there are two Houses, as a lower elected House (House of Representatives (Australia), as well as a Senate as a House of review.
In the House, the nation is divided into electoral districts/seats/constituencies/ridings on the basis of representing a given territory containing electors for that seat. These seats' boundaries are often redrawn in order to meet population shifts and, in Australia’s case, to provide for, roughly, 150,000 residents and 100,000 voters in each seat.
In a Westminster system, the Executive power is vested in the Crown and the Executive (ie the Prime Minister and Ministry) is drawn from whichever party or coalition has the confidence of the lower House.
While the House’s responsiveness to each individual seat’s electors may be the most democratic element of the Westminster system, especially as these seats determine who will form the government, even then it should be noted, that even the most careful drawing of territorial boundaries for each seat will still provoke some grumbling.
With regard to Australia, the Constitution (s.24) guarantees to each of Australia’s Original States (ie New South Wales, Queensland, Victoria, Tasmania, Western Australia, and South Australia) that they will have a minimum of five (5) House seats, regardless of population movements. Given Australia’s population distribution, and any decline in especially the Tasmanian population, the constitutional guarantee of still-sparsely populated Tasmania having at least five House seats may, in due course, become an issue for some. (As a long time support of Tasmania, if this helps keep Tasmania happily within the Australian federation, then I say Federalism is doing its job.) Moreover, House seats boundaries are limited to those of their State, and may not cross State borders, another example of the Federal nature of the Australian Constitution (per s.29).
Moreover, both Australia and Canada have Senates that are populated by senators that represent States or Provinces. In Australia’s case, each of Australia’s States have an equal number of Senators, regardless of population. Indeed, Australia’s constitutional design is so Federal that the Queensland Parliament had a special carve-out, should it wish to, to elect its Senators to represent specific senatorial electorates within that State (s.7), albeit one never exercised. In Canada’s case, the Senate is not even elected but is instead, in effect, appointed by the Crown on the advice of the Prime Minister of the day, to represent designated provinces and regional areas. None of this is democratic per se but, instead, serves the Federalist interests of making sure the federating parts of the nation-state have their voices heard and representatives in the national parliament to protect the interests of their constituent States, provinces, and regions.
Finally, in Australia’s case, the Constitution can only be amended by national referendum (s.128). Even then, a national majority of electors is insufficient – rather, a proposed constitutional amendment must not only win a national popular vote majority but must win a majority of the vote in a majority of the states. There is no more persuasive indicator of Constitutional Federalism than this requirement. The Australian Constitution's provisions for House representation and Senatorial representation also cannot be altered without the consent of the electors of the States that may be affected at the referendum, thereby replicating the United States’ requirements for constitutional amendment in Article V as regards its States.
The process for amending the Canadian Constitution is at least as Federal and, arguably, even more complex than is the case for the Australian Constitution.
The Future of Constitutional Federalism
No one is ever happy to lose an election. Some are even distressed when they win them. Nonetheless, those contesting elections in specific seats and regions are well aware of the legislative offices that they hope to occupy and what specific electors they are seeking to and, if elected, will be serving each day they are in office. And this is the whole point of Constitutional Federalism: when you run for a House seat representing a constituency or district or you run for a Senate seat for a State or a Province, you are running as a candidate to represent that specific territory and its people in an office provided for by a Federal constitution.
Under a Federal Constitution, you are elected as a territorial representative of a constituency or district or State, to serve that territory's people and to represent their interests, however great or small in size or people. You are, expressly and by intent, not elected as some national, partisan, apparatchik-at-large, who is only there to help enact the herd-like will of the “national popular vote”.
Direct democracies may seem, at first glance, fair, depending on whether or not you like the result, but, over time, they fall, inevitably, apart, especially as a few highly populated metropolises overawe the many sparsely populated towns, villages, and hamlets. Overtime, what could have been a common federal citizenship will become a disputatious unitary polity of electoral winners and losers, of rich versus poor, of town versus country, which will, when the aggrieved are denied representation, lead to political fragmentation, if not rebellion. A direct democracy for a large and diverse nation will provoke only resentments and entrench divisions.
Federalism is the ethos as well as the pact that disparate peoples inhabiting large constitutional states have made amongst themselves, in order to share a common national citizenship, while having their own voice and keeping their own patch. It allows for both necessary subsidiarity as well as for a natural loyalty to the larger nation, in the way that Edmund Buke’s ‘little platoons’ help build up the human society.
To borrow from the Americans, out of the many may, indeed, come one, but that for that one to survive times of war, depression and tumult, and to remain unified, then that one must, in its national legislature, accept that it is a unity composed by the many - and all of the many deserve to have their voices heard.
We live in a time of much anger, partisan rancour, and also much emphasis on ‘diversity’ and allowing people to determine their own courses in life. Federalism is thus not the problem – it is the answer. And while we Anglophones will always require strong central governments to secure the nation and protect its interests, we also need space in our national legislatures for those in the small town, the forgotten region, and the small and neglected province, to also have their say, and to ensure that no section of us is lost in the country that belongs to all of us together.
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