You're designing a new federal country: do you have one list of powers, or two lists?

Great Debates
1

Here’s a general debate I’ve been thinking about for a while. Suppose you’re on the constitutional convention for the good citizens of Newlandia, who want to create a new federal system to govern their country: a central government, plus regional states/provinces/Länder. The constitution of Newlandia is to ensure that both the central government and the regional governments have guaranteed areas of legislative authority, which the other level of government cannot usurp.

So that leads to the question: how best to set out the division of powers between the central and the regional governments, to ensure that neither government will be able to trench on the powers of the other?

Do you follow the American model, where there is just one list of powers, for the federal government, with everything else being left to the states? (Constitution of the United States, Article I, §8)

Or do you follow the Canadian model, where there is a list of exclusive federal powers and a list of exclusive provincial powers? (Ignoring for the purposes of this discussion the limited third list of concurrent powers.) (Constitution Act, 1867)

It seems to me that the Canadian model provides greater certainty about the distribution of powers.

I understand that the US model was adopted with the idea that that approach would emphasise that the federal government was to be a government of strictly enumerated powers, with everything else left to the states. However, as a matter of litigation strategy, it seems to me that it is much easier to argue for gradual increase in federal powers over time, because there is always a positive text to point to as the source of a particular federal power, with nothing to counter-balance it on the state side.

By contrast, in the Canadian system, those opposing a particular federal power always can point to a positive text that may support the matter falling under provincial jurisdiction. The courts have to interpret the two lists of powers in a consistent fashion, which has tended to keep the federal government more closely within the boundaries of the original list of federal powers.

Thoughts?

2

I would tend to think the one list system makes the most sense. Among those reasons is for the simplicity of interpretation. I cannot speak about Canadian law, as I’ve never studied it, but I can imagine that, whether they exist now or in the future, that any able bodied individual can find a contradiction that serves his purpose in gaining or restricting a specific power. Meanwhile, I think the greatest failing of the US system is the trust that the founders put in posterity to interpret with integrity and not with political views in mind. I am specifically refering the items like the “necessary and proper” clause which is growing looser and looser with each generation.

That said, I think it there is a wisdom somwhere in between; that is, a single document (to minimize contradiction) and an explicitly stated, with nothing left to interpretation, list of the powers of either the federal government, or the states/provinces. Now, myself being one to believe in a relatively weak central government, I would explicitly state the powers of the federal government, and reserve all else to the states/provinces. I would also leave behind a body of intentions by the authors that is to be used for interpretation. Of course, there still needs to be a way to update the powers if they don’t work, or new issues come into play, but it certainly shouldn’t be as easy as it sometimes seems to be.

3

“In a vacuum” I’d prefer the Canadian system.

The reason I think the system of Federalism was put in place as it was is because of certain realities of the time.

People were intrinsically afraid of enumerating powers (at least when it came to State government) and rights. There was genuine fear that enumerating rights would suggest unenumerated rights did not exist (to some degree that fear has been proven to be somewhat justified, rights explicitly enumerated in the Constitution have traditionally been afforded greater protection than the unenumerated rights.) Likewise, enumerating what States can do, scared the leaders of State governments. To them, the idea of narrowly defining key areas that the Federal government would be responsible for, and leaving the rest undefined made perfect sense. That left it up to the States to decide what each individual State government could and could not do within their own borders, each State had its own constitution, just like the U.S. one, which also had limitations on State power. By and large, the thinking of the time trended to believing that State governments were more naturally suited to the defense of liberty than the Federal government (history would show that certainly isn’t always the case–there are many cases of the Federal government granting rights that State governments deny, and vice versa.)

Keep in mind the constitution was ratified in 1789, the single biggest reason the U.S. Federal Government has become so powerful is because of the commerce clause. In 1789, interstate commerce was important, but a great deal of commerce still occurred exclusively “in state.” As time has passed, the definition of interstate commerce has expanded, as has interstate commerce itself (it’s more and more uncommon for there to be a business which can say it’s not engaged in interstate commerce.)

Also, while I’d like the Canadian “framework” in a vacuum, I wouldn’t like the explicit text. While I think Canada is in general a pretty nice place, I do think its brand of Federalism results in far weaker political subdivisions (provinces in their case) than we have in the United States. And it is a significant point of distaste with the Canadian government that I see expressed by Canadians I know from the Western Provinces and from Quebec (Ontarians on the other hand, seem fine with things the way they were–all of this quite anecdotal of course, I’ve never conducted a scientific poll of Albertans or Quebecois or et cetera.)

4

Point of clarification, Martin - I’m not suggesting that the Newlandia constitutional convention must adopt the particular division of powers of either the U.S. or Canada - so if they want international trade and commerce under local control, not the central government, that’s their business. My inquiry is directed more to the technique used to achieve that result.

5

I’m still working on Saturday morning coffee, and I do not have my paper notes and reference materials at hand, but I’ll try to contribute something meaningful.

One the one hand, I would agree–stating that “the Feds do these things while the Provinces do these others” is an unambiguous approach. But on the other, it seems to me that history demonstrates a number of squabbles in spite of that approach. Perhaps a very clear, or very flexible (or both) document is needed.

First of all, the clarity in the two–no, four–no, six–oh, whatever ( :wink: ) number of sections that enumerate Federal and Provincial powers in the Canadian constitution. It would be nice to say that sections 91 and 92 of Canada’s Constitution contain two complete lists of nicely-separated powers. Unfortunately, they don’t–further reading of the Constitution shows more provincial powers in Education (s. 93) and Immigration (s. 95); although the latter “shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.” A province has the constitutional power to control its own immigration, as long as the Feds haven’t trumped it with a simple statute? And courts are formed by the provinces but judges are appointed by the Feds? (Section 96.) Obviously, things work smoothly, as a lack of separation of powers incidents in the daily news illustrates, but it does seem to beg the question, “Who really wields the power here?”

A further point to illustrating the need for clarity is found at s. 92(10). Technically, the items listed in this section belong to the provice–but the list of exceptions to the the provincial powers is so long that it might as well be a list of Federal responsibilities. Which, being in the Provincial responsibilities of s. 92, is woefully out of place.

For these reasons, I believe that consolidating and clarifying the two lists of the Newlandia constitution would be most helpful.

Beyond that though, the Newlandia constitution would have to be flexible. As you well know, Northern Piper, there have been many division of powers questions raised by the Canadian constitution’s original 1867 wording. Specifically, what is to be done about things like communications methods such as telephone, television, and Internet; aviation; nuclear power; and such that simply were not contemplated in 1867? Various cases come to mind (Hodge, Cuddy Chicks, Oshawa Cable, Pronto Uranium, and other landmark decisions) and I know these and other issues have been settled law for some time. But it seems that they took a while to settle, which might not have been the case if a more flexible document had been drafted to begin with.

While I can see the merit in the American approach of “if it’s not listed here, it belongs to the States or to the People,” I continue to think that two lists would be the most unambiguous method possible–but only if enough flexibility was built into the original wording that Newlandia didn’t have to go through umpteen challenges, appeals, and reference cases the way Canada did.

I may regret participating in this thread, but I think I can learn much from it. Perhaps I’d better go get more coffee. :wink:

6

Actually the latter possibility was very much on their minds, if we can go by The Federalist Papers.

7

I would suggest no enumerated division of powers between the central and provincial governments at all. Leave it up to the ordinary political/electoral process: Some politicians will be ideological centralizers, others decentralizers; let the voters decide. In practice, most government functions will be carried out at the provincial level anyway, provided Newlandia is a big country.

8

I’m not sure how this would work–would the voters indicate their wishes for a division of powers through a referendum, or are you suggesting that the division of powers be left to democratically-elected politicians to decide?

You may be surprised to find that in Canada, where the “two lists” approach has been taken, many things are not carried out at the provincial level. Driver’s licensing, public education, liquor regulations and drinking ages, and (yep) health care, sure; but such things as banking, which is governed at the state level in the US, is governed at the federal level in Canada. In addition, criminal law is a federal responsibility–we have a uniform federal Criminal Code, which means we’re not extraditing accuseds from one province to another should they be apprehended in a province different from the one where the criminal act was committed.

There are drawbacks, to be sure; and such things as interprovincial and federal-provincial squabbles do arise, but it seems to me that not everything should be done at a provincial level. Perhaps there are some things best left to the Feds.

9

In most matters, the latter.

That sounds rather better than the American division of functions, on the whole.