Patrick J. Monahan

PART TWO, THE FRAMEWORK AND INSTITUTIONS OF GOVERNMENT

CHAPTER 4, THE CONSTITUTION ACT, 1867: FEDERALISM AND JUDICIAL POWER

The classic definition of federalism is that offered by K.C. Wheare, who described the federal principle as "the method of dividing powers so that the general and regional governments are each within a sphere co- ordinate and independent." [Note 1: K.C. Wheare, Federal Government, 4th ed. (London: Oxford University Press, 1963) at 11.] Wheare's definition states that under a federal system the general and the regional government each has an autonomous sphere of power that can be exercised independently of the other level. Further, under Wheare's formulation, the powers of the central government are exercised directly over individual citizens, rather than indirectly through the states or provinces. In the event that the central government does not have power to regulate citizens directly, the form of government would be confederal rather than federal. A similar definition of federalism was offered by A.V. Dicey, who identified the three leading characteristics of a "completely developed federalism" as including the distribution of powers among governmental bodies (each with limited and coordinate powers), along with the supremacy of the constitution and the authority of the courts as the interpreters of the constitution. [Note 2: A.V. Dicey, Introduction to the Study of the Law of the Constitution, 7th ed. (London: Macmillan, 1908) at 140.]

     Although Wheare's definition has been criticized by some commentators as being unduly legalistic [Note 3: See, for example, P.T. King, Federalism and Federation (Baltimore: Johns Hopkins University Press, 1982) at 77.] or as placing undue stress on the separateness of the central and regional authorities, [Note 4: See A.H. Birch, Federalism, Finance and Social Legislation (Oxford: Clarendon Press, 1955) at 306.] it provides a basis for distinguishing federal from other forms of government and remains widely accepted among students of the subject. Donald Smiley, for example building on Wheare's formulation, offered the following three-part working definition of a federal state [Note 5: See D.V. Smiley, The Federal Condition in Canada (Toronto: McGraw-Hill Ryerson, 1987) at 2.] (one I adopt for purposes of this book):

* legislative powers are distributed between a central and a regional government;

* the powers of the central and regional governments are not subject to change by the other level of government; and

* individual citizens are subject to laws enacted by both the central and the regional governments.

     This definition clearly distinguishes federal government on the one hand from unitary or confederate forms of government on the other. In a unitary state, ultimate political authority resides in the central or national government. The central government may establish regional or local governments, but local government powers are not constitutionally entrenched and are subject to unilateral change by the central government. The United Kingdom and New Zealand are examples of unitary states.

     In confederations, on the other hand, ultimate political authority resides in the states or regional governments, and the central government acts as their delegate. In this model the central government may not even have the power to enact laws directly affecting individual citizens. For example, the Articles of Confederation adopted by the American colonies in 1777 did not grant the national government any free-standing power of taxation. Instead, the national government's sole source of funds was grants received from the state governments. Only the states had the power to levy taxes directly on the population. [Note 6: A consensus emerged among the states after the conclusion of the American War of Independence in the 1780s that the national government's powers needed to be strengthened. This led to the Constitutional Convention of 1787 and the adoption of the final form of the American constitution, which granted the national government significant new powers such as the right to levy taxes and to regulate interstate and foreign commerce. The United States thus transformed what had been a confederacy into the first example of a truly federal form of government.]