Chapter V: The Constitution as a Federal Instrument

In examining any Federal Constitution, it is convenient to consider the system it creates first as a Federation, _i.e._ a contrivance for holding minor communities together in a greater one; and then as a Frame of Government, composed of organs for discharging the various functions of administration. Although the former of these influences the latter, because the federal character of a State prescribes to some extent the character of that State’s governmental machinery, it conduces to clearness to deal with these two aspects separately. Accordingly I begin with the federal aspect of the Constitution.

Federations are of two kinds. In some, the supreme power of the Central Government acts upon the communities which make it up only as communities. In others this power acts directly, not only upon the component communities, but also upon the individual citizens as being citizens of the Nation no less than of the several communities. The former kind of Federation may be described as really a mere League of States; the latter kind is a National as well as a Federal State.

The Australian Federation is of this latter type. So are the United States, the Swiss Confederation, and the Canadian Federation. It was however to the former type that both the United States before 1788 and Switzerland before 1848 belonged. So Germany was a mere League of States before 1866, but has been a National as well as Federal State since 1866 and 1871.

The essential feature of this latter type, with which alone we are here henceforth concerned, consists in the existence above every individual citizen of two authorities, that of the State, or Canton (as in Switzerland) or Province (as in Canada), to which he belongs, and that of the Nation, which includes all the States, and operates with equal force upon all their citizens alike. Thus each citizen has an allegiance which is double, being due both to his own particular State and to the Nation. He lives under two sets of laws, the laws of his State and the laws of the Nation. He obeys two sets of officials, those of his State and those of the Nation, and pays two sets of taxes, besides whatever local taxes or rates his city or county may impose.

Accordingly the character of each and every Federation depends upon the distribution of powers between the Nation and the several States, since some powers must be allotted to the larger, some to the smaller entity. With regard to certain powers there can be no doubt. The navy, for instance, the post office, the control of all foreign relations, must obviously be assigned to the National Government, together with the levying of customs duties at the frontiers and the raising of revenue for the purposes above mentioned. On the other hand, matters of an evidently local nature, such as police, prisons and asylums, the system of municipal or county administration, with the power of taxing for these purposes, will be allotted to the State Governments. But between these two sets there lies a large field of legislation and administration which may, according to the circumstances of each particular country and the wishes of the people who enact their constitution, be granted either to the Nation or to the States. The law of marriage and divorce, for instance[214], criminal law[214], bankruptcy, the traffic in intoxicating liquors[215], the regulation of railways[215], the provision of schools or universities[216], are all matters which have both a national and a local significance, and may be entrusted either to the National legislature or to the State legislatures according as one or other aspect of them predominates in the mind of the people.

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Footnote 214:

In the U.S.A. a State, in Canada a Federal matter.

Footnote 215:

In Switzerland a Federal matter, in the U.S.A. partly a Federal,
partly a State matter.

Footnote 216:

In the U.S.A. and Germany a State Matter, in Switzerland and Canada
partly a Federal Matter.

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