Sorry, I forgot to mention the two territorial legislatures.
But isn’t it correct that in the German constitution you have the concept of “concurrent legislation” (Konkurierende Gesetsgebung), whereby a fair-sized list of powers are shared by the federal state and those of the individual states (Bundeslaender), with the proviso that, once the federal state has legislated upon one of these powers, the Bundeslaender cannot anymore? The person who explained this to me long ago said that, as the federal state has legislated on many of these points, the individual states now have relatively little power. The example they gave of one thing the Bundeslaender do legislate on is education. Would you have any comments on this commentary?
The OP is doubtless aware of this, but one of the 50 US states (Nebraska) has a unicameral legislature, and this causes no particular problems.
The US also has a great many legislatures at a lower-than-state level, with various degrees of power (ultimately dependent on what the state gives them), and those lower legislatures (city councils and the like) are usually unicameral.
I wasn’t thinking so much about “problems,” but rather that bicameral legislatures are so common among the states. I wondered if that carried over to other countries.
This may come as a bit of a shock, but the Australian States didn’t adopt bicameral legislatures because of the US model. I suspect we aren’t an outlier on that matter either.
I imagine that both the US and Australia were inspired by the British system, though the “Upper House” of Parliament is vestigial nowadays.
Bicameral legislatures are not particularly associated with the British system. They’re extremely common in political systems that didn’t emerge from the British constitutional tradition.
I think a bigger factor is the history of how a particular federation came to be. In many cases — e.g. the US, Australia — the constituent parts of the federation pre-exist the federation, and they already have legislatures and governments. The federation comes into being when these constituent parts agree to federate, to establish federal authorities and to cede some of their powers to them. In these case the residual power will generally lie with the constituent parts, and the political class in the constituent parts will see no particular need to slim down their existing institutions.
In other cases, a national state already exists and national institutions are established, but at the national level a decision is made that it is desirable to adopt a federal constitution. The national parliament then establishes constituent parts, establishes legislatures and other political institutions for them, and confers powers on them. In these cases the constituent parts are more likely to have simply-structured institutions, including a unicameral legislature, and to have a defined list of competences, with the residual legislative power remaining with the federal legislature.
I would agree with PatickLondon’s comments. I would add that one reason the EU isn’t a federation is that unlike federations like the UK, Germany, Australia and Canada, where the federal government’s consent is needed for constitutional amendments, the EU government has no say in the constitution of the EU. Only the member states can amend the constitution, and that is by unanimous changes to the constituent treaties. To my mind, and based on the definition I gave earlier, that means that the EU is not a federation.
The upper house in the British system was the house of Lords, from back when they mattered as much or more than the great unwashed masses (technically, the non-noble property owners.)
As I pointed out, the Canadian senate was designed to be a junior version of this, at about the time that unversal sufferage (for men) was becoming normal. The senators were appointed from the elite rich property owners to safeguard their rights from the tendency As Tyler expressed it, “…to vote themselves largesse out of the public purse.” At the time the USA was recovering from a major civil war, so I suspect the US Senate was less of a model - although perhaps it was more front of mind when the Australian senate was conceived.
The American federal senate was, intrestingly, the same more contemplative body, although some will argue it was conceived as a way for the states to temper the urges of the federal government to interfere, espcially in matters like slavery, and especially when senators were generally appointed by the state. Six year terms meant the senators were more immune from immediate issues. Apparently, they still are.
I’m aware of the House of Lords. My point is that Britain was by no means unique in having a bicameral legislature, or an upper house which represented the interests of big landowners and powerful local magnates; it was the European norm. Britain had it because both of its predecessor states, England and Scotland, had it before Britain became a state. Ancien regime France had the three estates - nobility, clergy, bourgeoisie. In the Imperial Diet, the nobles and the representatives of the cities met separately. The Portuguese Cortes met in three estates, representing the nobility, clergy and bourgeoisie. Etc, etc.
While many countries inherit their parliamentary traditions from Britain, an even larger number do not. Yet most of them have bicameral legislatures. There’s nothing distinctively British about bicameralism.
Federations in particular lend themselves to bicameralism — one chamber representing the population at large on a proportionate basis, and the other representing the constituent parts of the federation on an equal, or more equal basis, paying no regard or a reduced regard to population size. This, of course, is the model adopted by the US, and widely copied since. The role of senators in representing states rather than people is underlined by the fact that, until 1913, senators were chosen by state governments rather than elected by the people. This idea influenced the design of the Canadian Senate; that’s why senators are drawn from geographically-defined regions.
It’s all true, and it has the effect that many policy areas that are state powers in the US have been federalised in Germany as a result of very far-reaching federal legislation under such a concurrent power. My point is simply one of rule versus exception: The constitutional text says that every power is a state power unless stipulated otherwise. The constitution then goes on to enumerate long lists of federal powers, either concurrent or exclusive. They have been exercised by the federal level very extensively, but in legal theory they are nonetheless exceptions to the default rule.
That answer to my mind shows the weakness of the “list the federal powers, reserve everything else to the states” approach. If there is not a clear list of exclusively state powers, it can lead to a gradual expansion of the federal powers.
When you only have a list of specific federal powers, long-term it’s easy for there to be a gradual expansion of those powers vis-à-vis the states, because there’s not really much to provide conceptual push-back.
When instead you list the state and federal powers, it provides much more teeth, because those opposing an expansion of federal powers can point to the state list and argue that the expansion intrudes on state powers.
That’s how it’s worked in Canada. The federal powers are limited by the express list of provincial powers. For example, our federal “trade and commerce” power has not steadily expanded, unlike the federal “commerce clause” in the US. The reason is that provinces have exclusive jurisdiction over “property and civil rights”, which includes most of the law relating to contracts, property, torts, etc. That serves as a conceptual brake on the expansion of the federal “trade and commerce” power.
I know some posters on the Boards bring up the 10th amendment, and argue that the courts’ expansion of the “commerce clause” breaches the 10th amendment. Conceptually, however, that’s a hard argument to make, because once the courts say that subject x comes within the federal “commerce clause”, by definition it’s one of the enumerated federal powers and not a breach of the 10th amendment. In my opinion, the 10th amendment is just too nebulous to really act as a check on the expansion of the federal powers, unlike the enumeration of specific provincial powers in Canada.
Sorry, but this isn’t the case. As mentioned in previous posts, the Canadian provinces have substantive legislative powers that the federal government cannot intrude on. Legislation is a major function at the provincial level.
Your point stands, but an example with three estates does not illustrate a bicameral legislature.
Argentina has a mix of bicameral and unicameral legislatures.
As evidenced, of course, by the fact that it hasn’t been successful, and that the US federal government power has, in fact, expanded substantially over history, through the Commerce Clause and other mechanisms. Argue all that you want that the expansion was unconstitutional, but the courts haven’t agreed.
I’m not challenging the decisions.
My point is that the structure of the division of powers in the constitutional text can affect how the balance of power gets interpreted by the courts.
A single list of specific powers for the central government, combined with a general statement of reserved state powers, is not very successful in keeping the central government’s powers in check, in my opinion.
Didn’t mean to imply that you were. The “you” in “argue all you want” was a general “you”, addressed, if to anyone, to the folks who argue that the Tenth Amendment should have stopped the federal expansion.
Fair point. I should have expanded. A three-estate structure commonly lurks in the history of bicameral legislatures. Either as a result of the Reformation or as as a result of Enlightenment secularisation, the clergy end up being either excluded or absorbed into the noble/landowning estate and, hey presto!, you have a bicameral legislature.
How about Australian constitution, Section 113 ?
" Intoxicating liquids
All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State."
Thats it though. Section 51 gives a list of powers the Australian federal parliament certainly has.
It doesn’t then ban federal government from taking on more, nor control the states from interfering…
Except that it says the federal laws override state laws.