Definitions of Comparative Federalism
Comparative federalism is the systematic examination of two or more federal Polities or states in the effort to establish similarities and dissimilarities in diverse aspects of their existence which will guide any choice between them and lead to suggestions on areas of improvement. Comparative federalism is concerned with the significant regularities, similarities and differences in the working and political behavior of federated states to produce a body of factual data by which the theory of federalism can be tested and challenges of federalism solved. (Ejezie I.C. 2017).
2. Objectives of Comparative Federalism
The objectives of comparative federalism are as follows:
– It elevated the theory and practice of federalism as an academic discourse.
– The systematic examination of two or more polities helps to establish their differences and similarities.
– The analysis of two or more federal states is a guide to any choice between them
– Comparative federalism helps to identify problems of federal states and proffers solutions to their problems
– Comparative federalism is a research on federal states that produces a body of factual data by which the theory of federalism can be tested and the challenges of federalism solved. (Ejezie I.C. 2017)
3. Definitions of Federalism
A federal state is one in which there is a central authority that represent the whole, and acts on behalf of the whole in external affairs and in such internal affairs as are held to be of common interest, and in which there are also provincial or state authorities with powers of legislation and administration within the sphere allotted to them by the constitution (Samuel. H. in Appadorai. A. 2004: 495).
Hamilton S. defined federalism as an association of states that forms a new one (Appadorai A: 2004: 495).
Dicey defined federalism as a political contrivance intended to reconcile national unity with the maintenance of state rights (Appadorai A 2004: 495)
4. Origins of Federalism
Federalism can evolve from any of these perspectives:
a. Institutive federalism – which arises through the coerced authority of a foreign power to form federalism e.g. Nigeria during the colonial rule (Obasi Igwe 2003:154)
b. Constitutive Federalism which arises through voluntary agreement of the constituent units to form federalism. e.g. U.S.A, Australia, and Switzerland. ( Obasi Igwe 2003: 154)
5. Types of Federalism
A federal state can be any of these:
1. Dual federalism – which involves clearly enumerated powers between the national and state government and sovereignty in equal spheres.
2. Cooperative federalism – involves the national and state government sharing functions and collaborating on major national priorities.
3. Creative federalism – the relationship is characterized by overloaded cooperation and cross cutting regulations
4. New federalism – characterized by devolution of powers from national to state government, deregulation, but also increased difficulty of states to fulfill their new mandates.
5. Judicial federalism involves the struggle between the national and state government over the relative constitutional powers of each and over key constitutional provisions.
6. Fiscal federalism involves the offer of money from the national government to the states in the form of grants to promote national ends such as public welfare, environmental standard and educational improvements. (Internet: 2017)
6. Essential Features of Federalism
Federal states posses the following features:
1. The division of powers by a constitution between the constituent units (states, provinces) and the larger state which they compose.
2. The supremacy of the constitution. It implies that laws passed by any authority in the state, if contrary to the constitution may be declared ultra-vires.
3. The existence of a court to interpret the constitution. The Supreme Court interprets the constitution and decides conflicts of jurisdiction between the centre and the units. Neither the Federal authority nor any unit thereof has the power to change the constitution as it likes (Appadorai A: 495)
4. A federal state has a rigid constitution. The machinery to amend the constitution is one in which both the federal authority and the units have a definite palace. Eg. USA, Switzerland and Australia (Appadorai A: 496)
7. Conditions for Federalism
The conditions for federalism are as follows:
1. The desire for union. The felt need for strength in external relations and the desire by separate states by conjoint action to develop foreign trade remove eternal trade barriers and prevent internecine war.
2. The desire for local independence. Desire among the component states for the preservation of their independence in all but essentially common matters is a precondition to form federal political organization.
3. Geographical contiguity. The physical contiguity of countries which are to form a federation is certainly a favorable and possibly a necessary condition for the success of federal government. (Appodorai .A. 2004 498).
4. The absence of marked inequalities among the component units.
5. Political education and legalism. Double allegiance and the ability to prevent the centrifugal principle of political action from overcoming the centripetal. A general willingness to yield to the authority of the law courts (Appadorai .A .2004: 500).
8. Problems of Federal States
Federal states have these challenges:
1. A satisfactory division of powers: The problem which all federal states have to solve is how to secure efficient central government, while allowing scope for the diversities and free play to the authorities of the units. Bryce’s said it is how to keep the centritripetal and centrifugal forces in equilibrium, so that neither the planet states shall fly off into space, nor the sun of the central government draw them into its consuming fire.
2. Protection of the smaller units against dominance by the larger.
3. Organization of the relation between the centre and the unit: Ideally in a federal state, the centre and the units ought to be mutually independent in the spheres allotted to each by the constitution in legislation, in administration and in finance.
4. Organization of the relation among the units: Each state is more or less independent not only of the centre but of other states as well. Such provision included in federal constitutions to regulate their relationship are calculated to secure harmony among them in respect of certain essential matters and to prevent any two or more of them conspiring against the interest of the whole.
5. A satisfactory method of amendment: Neither the centre nor the units by themselves should be given the powers to alter the constitution, as such power is likely to affect one of the essential features of federalism viz the (a) supremacy of the constitution and (b) it is desirable that in the body which is authorized to change the constitution, both the centre and the units are given some place, and further the smaller states must be protected against dominance by the larger.
6. Secession: It is possible that one or more of the units as the southern states of U.S.A did in 1861, can claim the right of secession from the whole (Appadorai A. 2004: 505).
7. Any of the constituent units or a few of them have the capacity to unilaterally predetermine issues decisively, the revenue system is not consistent with the actual federal or responsibility system, there is a weak adherence to constitutionality and legality by the centre or the units (Obasi Igwe 2003: 154).
8. Deliberate injustice against components of the polity is masterminded by the centre, and arising from or related to the foregoing in conditions of wide spread belief that the union is not serving its intended purposes or people are giving more than they are benefitting from it (Obasi Igwe 2003:154).
9. Enormous problems also inhere from a widespread internal incoherence of the constituent units, such as when tribes, races, communities etc that do not relate harmoniously are forced together as units of the federation, making it impossible for each to advance a uniform front in relations with other, or adhere effectively for developmental purposes (Obasi Igwe 2000: 154).
9. Suggestions towards the Sustenance of Federalism
The sustenance of federalism depends on the following:
1. The components of a federation must not be too different from one another, culturally, economically, linguistically or historically.
2. The federation must have a shared political culture as in United States, Australia, Brazil and Germany.
3. The federation must have a right balance between the central and state government. Immoderate jurisdictional conflicts over whose rules apply in which situation and different levels of government trying to dump expenses on the other level should be avoided (Michael G. Groskin et als 2008; 249).
10. Overview of Federalism in selected states of Australia, Brazil, Canada, India, Russia, United States and Nigeria.
On 1st January 1901 the Australian nation emerged as a federation. The Australian continent was colonized by the United Kingdom in 1788, who subsequently established six-governing colonies there. In the 1890s the governments of these colonies all held referendums of becoming a unified, independent nation. When all the colonies voted in favour of federation, the Federation of Australia commenced, resulting in the establishment of the Commonwealth of Australia in 1901. The model of Australian federalism adheres closely to the original model of the United States of America, though through a Westminster system. (Internet 2017).
In Brazil, the fall of the monarchy in 1889 by a military coup d’etat led to the rise of the presidential system, headed by Deodoro da Fonseca. Aided by well-known jurist Ruy Barbosa, Fonseca established federalism in Brazil by decree, but this system of government would be confirmed by every Brazilian constitution since 1981 although some of them would distort some of the federalist principles. The 1937 Constitution, for example, granted the federal government the authority to appoint State Governors (called interventors) at will, thus centralizing power in the hands of President Get’ulio Vargas. Brazil also uses the Fonseca system to regulate trade. (Internet 2017).
The Brazilian Constitution of 1988 introduced a new component to the ideas of federalism, including local governments as federal entities. Brazilian cities are now invested with some of the traditional powers usually granted to states in federalism, and although they are not allowed to have a Constitution, they are structured by an organic law.
In Canada, the system of federalism is described by the division of powers between the federal parliament and the country’s provincial governments. Under the Constitution Act (previously known as the British North America Act) of 1867, specific powers of legislation are allotted. Section 91 of the constitution gives rise to federal authority for legislation, whereas section 92 gives rise to provincial powers.
For matters not directly dealt with in the constitution, the federal government retains residual powers; however conflict between the two levels of government, relating to which level has legislative jurisdiction over various matters, has been a longstanding and evolving issue. Areas of contest include legislation with respect to regulation of the economy, taxation, and natural resources. (Internet 2017).
Government of India referred to as (the Union Government) was established by the Constitution of India and is the governing authority of a federal union of 28 states and 7 union territories.
The governance of India is based on a tiered system; where in the Constitution of India appropriates the subjects on which each tier of government has executive powers. The Constitution uses the Seventh Schedule to delimit the subjects under three categories, namely the Union list, the State list and the Concurrent list.
A distinguishing aspect of Indian federalism is that unlike many other -forms of federalism, it is asymmetric. Article 370 makes special provisions for the state of Jammu and Kashmir as per its instrument of Accession. Article 371 makes special provisions for the states; Andhra Pradesh, Arunachal Pradesh, Assam, Goa, Mizoram, Manipur, Nagaland and Sikkim as per their accession or state-hood deals. Also one more aspect of Indian federalism is system of President’s Rule in which the central government (through its appointed Governor) takes control of state’s administration for certain months when no party can form a government in the state or there is violent disturbance in the state. (Internet 2017).
Although the Constitution did not envisage it, India is now a multi-Lingual federation. India has a multi-party system with political allegiances frequently based on linguistic, regional and caste identities, necessitating coalition politics, especially at the Union level.
e. RUSSIAN FEDERATION
The post-imperial nature of Russian subdivision of government changed towards a generally-autonomous model which began with the establishment of the USSR (of which Russian was governed as part). It was liberalized in the aftermath of the Soviet Union, with the reforms under Boris Yeltsin preserving much of the Soviet structure while applying increasingly-liberal reforms to the governance of the constituent republics and subjects (while also coming into conflict with Chechen secessionist rebels during the Chechen War). Some of the reforms under Yeltsin were scaled back by Vladimir Putin.
All of Russia’s subdivision entities are known as subjects, with some smaller entities, such as the republics enjoying more autonomy than other subjects on account of having an extant presence of a culturally non-Russian ethnic minority. (Internet 2017).
f. UNITED STATES
The United States is divided into a number of separate states, each with varying amounts of government and power federalism in the United States is the evolving relationship between state governments and the federal government of the United States. American government has evolved from a system of dual federalism to one of associative federalism. In “Federalist No. 46” James Madison asserted that the states and national government “are in fact but different agents and trustees of the people, constituted with different powers”. Alexander Hamilton, writing in “Federalist No. 28”, suggested that both levels of government would exercise authority to the citizen’s benefit: “If the peoples’ rights are invaded by either, they can make use of the other as the instrument of redress.”
(http://www.learner.org/courses/democracyinamerica/dia 3/dia 3 to pic.html)
Because the states were pre-existing political entities, the U.S Constitution did not need to define or explain federalism in any one section. However, it contains numerous of the rights and responsibilities of state governments and state officials vis-a-vis the federal government. The federal government has certain express powers (also called enumerated powers) which are powers spelled out in the Constitution, including the right to levy taxes, declare war, and regulate interstate and foreign commerce. In addition, the Necessary and Proper Clause gives the federal government the implied power to pass any law “necessary and proper” for the execution of its express powers. Powers that the Constitution does not delegate to the federal government or forbid to the states – the reserved powers are reserved to the people or the states. The power delegated to the federal government was significantly expanded by the Supreme Court decision in McCulloch V. Maryland (1819), amendments to the Constitution following the Civil War, which the states were legally subject to the final dictates of the federal government.
The Federal party of the United States was dissolved in 1824. They were heavily opposed by the Democratic-Republicans mainly believed that:
a. The Legislature had too much power (mainly because of the Necessary and proper Clause) and that they were unchecked.
b. The executive branch had too much power and that if there was no check on him a dictator would arise.
c. A bill of rights should be coupled with the constitution to prevent a dictator (then believed to eventually be the president) from exploiting citizens. The federalists, on the other hand, argued that it was impossible to list all the rights and those that were not listed could be easily overlooked because they were not in the official bill or rights. Rather, rights in specific cases were to be decided by the judicial system of courts.
Decades after the Civil War, the federal government increased greatly in size and influence, in terms of its influence on everyday life and it’s relative to the state governments. There are several reasons for this including the need to regulate businesses and industries that span state borders, attempts to secure civil rights, and the provision of social services. The federal government acquired no substantial new powers until the acceptance by the Supreme Court of the Sherman Anti-Trust Act in State of Minnesota V. Northern Securities Company. (Internet 2017).
Many people believe that the federal government has grown beyond the bounds permitted by the express powers. From 1938 until 1995, the U.S. Supreme Court did not invalidate any federal statute as exceeding Congress power under the Commerce Clause for over fifty years until United States V. Lopez overturned the power of the Federal government under the Commerce Clause (see also, challenging the Gun-Free School Zones Act). However, most actions by the federal government can find some legal support among the express powers, such as the Commerce Clause. The Commerce Clause is used by Congress to justify certain federal laws, but its applicability has been narrowed by the Supreme Court in recent years. For example, the Supreme Court rejected the Gun-Free School Zones Act in the aforementioned Lopez decision, and they also rejected the civil remedy portion of the Violence against Women Act of 1994 in the United States vs Morrison decision. Recently, the Commerce Clause was interpreted to include marijuana laws in the Gonzales vs Raich decision.
Dual federalism holds that the federal government and the state governments are co-equals, each sovereign. In this theory, parts of the Constitution are interpreted narrowly, such as the Tenth Amendment, the Supremacy Clause, the Necessary and Proper Clause and the Commerce Clause. Under this narrow interpretation, the federal government has jurisdiction only if the Constitution clearly grants such. In this case, there is a large group of powers belonging to the states or the people, and the federal government is limited to only those powers explicitly listed in the Constitution.
However, since the Civil War Era, the national courts often interpret the federal government as the final judge of its own powers under dual federalism. The establishment of Native American governments (which are separate and distinct from state and federal government) exercising limited powers of sovereignty, has given rise to the concept of “bi-federalism.” (Internet 2017).