Division of Powers

Division of Powers on Territorial Basis: In addition to the distribution of governmental powers in accordance with the character of the function to be performed, as discussed in the preceding article, modern states, because of the extent of their area, find it desirable also to divide the powers of government along territorial lines. According to this method the territory of the state is divided into a number of distinct districts, each of which is charged with the performance of certain governmental duties within its boundaries and is provided with a governmental organization for that purpose.

A national government and a series of local governments are the result of thin process. In addition, therefore, to the principle of separation of powers, which distributes governmental powers functionally, the principle of division of powers is applied, which, divides governmental powers territoriality. Both these methods are employed in the organization of all modern governments, the functional distribution reappearing within each territorial division.

The desirability of the division of powers among territorial units results, not only hem the great extent of territory over which many modern states exercise jurisdiction, but also from the fact that many functions of government have to do with Problems that affect the interests of particular localities rather than the country as a whole. If a single central government were to undertake all functions, the burden of work thrown upon it would be too great for efficient administration, and would result in intolerable expense and delay.

Besides, it is more satisfactory and just that smaller communities should manage those affairs that concern themselves alone, because of the presumption that such affairs will be better administered by those directly concerned arid because it gives to a larger number of Persons an interest and a share in political action.

The system of territorial subdivision is essentially similar in all modem states. For certain purposes the entire area of the country is treated as a governmental unit, with a governmental organization known as the central or national government. This area is subdivided into a relatively small number of important divisions, known by various names, commonwealths, provinces, departments, cantons each with a completely organized government.

These grand divisions are further subdivided into smaller areas, known as counties, townships, communes, and the like, each also having its political organization. In addition, all modern states recognize that urban and rural areas present different problems of government hence they grant to the urban areas a special political organization and confer upon them governmental powers over their peculiar interests.

The growth of cities has been one of the most important developments of the past century, and has created new and difficult problems of government. The legal position of the city in the state and the degree to which it shall possess municipal home rule, or the right to determine its own form of government, have been much disputed questions. The peculiar nature of city problems, which are largely administrative and deal with business questions, has given an impetus to the demand for efficiency in government and the use of trained experts.

In addition to this general system of subdivision, numerous Special areas are created for the purpose of administering a particular function. Such administrative districts have been created for the collection of national revenue, the conduct of the postal system, the control of education, the care of the public health, the maintenance of roads, the relief of the poor, and numerous other purposes.

The more important modern States also possess colonial dependencies, and set up in each of these a governmental system more or less under the control of the national government of the home state. Sometimes colonies are desired as outlets for the surplus population of the home state sometimes they are used as areas for economic exploitation, in which raw materials may be secured, or markets for home goods found, or opportunities for profitable investment developed, sometimes they are acquired for their strategic location for military, naval, or commercial purposes. The relation of the colony to the mother country, the form of colonial government that is established, and the effect of colonial expansion on the international relations of states all raise important political questions.

In determining how the sum total of governmental powers shall be distributed territoriality, certain problems arise. Among these the most important are the following:

1. What authority shall decide how the territorial distribution shall be made ?
2. What shall be the system of geographical division into political units ?
3. What governmental powers shall be delegated to each territorial unit ?
4. What type of government organization shall be set up in each territorial unit ?

Unitary and Federal Government:

For the student of political science the fundamental question is, What authority has the legal right to determine the distribution of governmental power territoriality, especially in the adjustment between the national government and its main subdivisions ? Two systems are found in modern states, resulting in two distinct types of government. In one the constitution of the state delegates all governmental power to the national government, which may create such subdivisions and delegate to them such powers as it sees tit, changing their boundaries or their powers at its pleasure by ordinary legislative enactment. This system creates a unitary government.

In the other system the constitution of the state definitely provides for both a national government and the main subdivisions, dividing the powers of government between them. Under this arrangement neither the national government nor that of its main divisions can change the other or legally interfere with the exercise of the powers that belong to it.

Only by constitutional amendment can any readjustment be made. This system creates a dual, or federal, government. Most modern states have adopted the unitary form of government the United States, Switzerland, Canada, Australia, and some of the Latin American states have adopted the federal form.

While the subdivisions of government in a unitary state are merely agents of the national government and may be created or altered, and their powers enlarged or contracted, at its will, nevertheless the national government may grant to them a considerable sphere of local autonomy and self government, as is done in Great Britain. In the countries of continental Europe the powers granted to the subdivisions are subject to wide control by the national government, even when those powers relate to matters of local interest. In the federal form of government the main subdivisions of the state are autonomous units, having their own constitutions and political systems.

While they are not sovereign states and cannot legally withdraw from the union or exercise powers that are constitutionally delegated to the national government, neither can the national government destroy them, or modify their boundaries without their consent, or interfere with their powers. It is quite possible that the actual powers granted by the constitution to the constituent members of the federation may be less in practice than those delegated by the national government to the local subdivisions in a unitary state. The test of a federal system is not the extent of the powers exercised by the subdivisions, but their legal status and the source of their authority.

The creation of unitary and federal system of government was hugely the result of the historic development of modern national states. As a glowing national spirit and improved methods of organization tended to expand the areas of political units, two methods were mainly followed.

One was that of complete fusion, the separate governments of the combining Units being merged into a single organization. Sometimes this took place voluntarily and peacefully when a spirit of nationality was well developed and local differences were slight. Usually it resulted from conquest and expansion, as a more powerful state extended its boundaries, regardless of the wishes of the peoples that it incorporated and at the expense of their local political organizations.

By both these processes, however, states with unitary governments were formed. The component parts either lost their identity completely or became mere districts of administration, subordinated legally to the authority of the central government.

The other method was that of voluntary federal union. States whose nationality or situation and needs were such as to make union desirable, but whose local differences and jealousies were too great to permit complete amalgamation or whose strength was too nearly equal to make conquest possible, were able to unite on this basis.

The component parts retained their governments, with constitutional rights over certain matters, but they lost their sovereignty to the new state that was formed by the union. A central government was created with certain powers but neither central nor local government could legally encroach upon or destroy the other. Such a state was usually formed after a gradual process, passing through various degrees of alliance and confederation before the necessary spirit of unity was created.

The United States, Switzerland, and Germany passed through this development. A few states, such as Brazil and Mexico, deliberately adopted the federal system, not as a means of union but through imitation and as a method of adjusting national and local interests. In these cases the formation of the federal system was the result not of the Concurrent action of the members but of initiation and action by the central government of a former unitary state. A somewhat similar procedure was followed in the federation of a group of colonial dependencies in Canada, in Australia, and in South Africa.

Sovereignty in the Federal System:

The political process by which a federation is formed and the location of sovereignty within it have been much disputed questions, especially in the United States and in Germany. It has often been held that a federation is formed by a voluntary union of sovereign states, as if a new state could be created by a compact among states. Evidently such an agreement would be merely a treaty, since by that method alone can states enter into mutual relations.

Besides, such a compact would be valid only as long as the contracting states retained the sovereignty that made them competent to enter into it. By a contract it is impossible to create an authority superior to the contracting parties hence a union formed on this basis could be nothing more than a confederation of sovereign states. No single sovereign would exist, each state would be competent to determine its own rights and powers or to withdraw from the agreement if it chose, and any common government that might be created would derive its authority from the individual states that it severally represented.

A federation, however, is a single sovereign state. It derives its legal powers from a constitution, not from a treaty. In forming a federation, therefore, it must be held that the former separate states disappear, their sovereignty being destroyed and the people of those states, having divested themselves of the old allegiance, create, on the basis of national unity, a new sovereign state. The formation of a federation is legally a revolutionary act, and the sovereignty of the new state rests, not on former legal authority but on the consent of force upon which sovereignty always ultimately rests.

Under the constitution of the new state the former states reappear as commonwealths in a federal system but their sovereignty is gone, and however powerful their historic traditions may be or however large may be the powers left to them, they owe their position and powers to a superior authority and have no legal status except in the union.

In a federation, then, sovereignty is located neither in the central government nor in the commonwealths. Neither is it divided between them, as many writers in the early nineteenth century held. Sovereignty is a unit and cannot be divided though the exercise of governmental powers may be distribute among various organs. Sovereignty resides in the state itself. Both the central and the commonwealth government are its agents, neither being able to destroy or to dominate the other.

In the federal constitution both systems of government are created and their respective powers outlined and in the sum total of all legal lawmaking bodies in the state, national and local, including those bodies that may legally amend the constitutions, the exercise of sovereignty is vested. If sovereignty is located in the central government alone, the federal system is destroyed and a unitary state results, if sovereignty is located in the member units, the result is not a federal state but a league or confederation of sovereign states.

Distribution of Powers in the Federal System:

In the federal form of government the distribution of powers between the central government and the local subdivisions becomes of prime importance. In general, the principle is followed that affairs of common interests which require uniformity of regulation are placed under the control of the central government, while matters that are of local concern or that require different treatment in different sections of the country are left to the local units.

The central government is usually given control over certain functions essential to state existence, such as the maintenance of the army and navy, the control of war and peace the conduct of foreign relations, the raising revenue, the regulation of foreign and inter state commerce, the coinage of money, and the regulation of the postal system, of patents and copyrights, and of naturalization. At the other extreme stand affairs of local concern alone, or those demanding different treatment because of sectional differences, which are properly left to the governments of the component units.

Between these lies a vast held of interests concerning whose control the practices of modern federations and the Opinions of Statesmen show marked divergence. This list includes such questions as the regulation of transportation and communication, of labor, of marriage and divorce, of public education, and of civil and criminal law.

In the authority granted to the central government over interests of this type the constitutions of federations differ. That of the United States is practically silent on these points, and the clause leaving to the commonwealths all powers not expressly granted to the national government evidently was intended to remove such matters from national jurisdiction. The constitution of the German republic granted to the central government authority over railroads, civil and criminal law, banking, insurance, and other matters.

In Switzerland the central government has authority over factory labor, marriage, civil and criminal law, insurance, and has a certain amount of control over religion and education. In Canada the Dominion Parliament may legislate on trade and commerce, banking, marriage and divorce, criminal law, and many other questions.

In distributing the powers of government between the central and local governments in federal systems, two methods have been followed. In most of them the powers conferred on the central government are specially enumerated in the constitution, and all the remaining powers except those specially prohibited are left to the local units.

Under this system the central government possesses delegated powers, while the local subdivisions possess residuary powers, and in case of dispute the presumption in law is against the claim of the central government to exercise any power that is not specifically granted to it. In Canada, however, the local governments are granted specially enumerated powers, while the central government is given certain specific powers and general authority over all matters not definitely granted to the subdivisions.

In some federal systems the central government creates its own governmental organization for the enforcement of its laws in all parts of the country. In others the central government depends largely upon the officials of the local government for the enforcement of national law. The latter system has the advantage of avoiding considerable duplication of administrative machinery, but the disadvantage of frequent failure on the part of local officials to enforce national laws against Which there may be strong local sentiment.

The central government is sometimes given a certain control over the organization and actions of the government of its subdivisions. Thus, in the United States, it is the duty of the national government to see that a republican from of government is maintained in the major subdivisions. In Canada the Dominion Parliament may set aside acts of the provincial assemblies. In the former German republic the national government could compel the members of the union to perform their constitutional duties. In the United States the national government may use force against a state, if necessary, to protect national property or to enforce national laws or court decisions.

During the past century there has been a marked tendency toward increasing the authority of the central government in states of the federal type. This is partly owing to the changing conditions of modern life. Large scale production, the development of transportation and communication, wider markets, and increasing interdependence of sections formerly economically independent cannot fail to affect correspondingly the powers of government. Not only is the spirit of unity increased, but interests formerly local outgrow regulation by any except the widest governmental authority.

Modern business is national or even international rather than local Besides, the creation of a federation is itself a step toward further unity. The existence of a common government, whose working becomes increasingly familiar to all citizens, cannot fail to strengthen the national spirit, whose beginnings the federation at least indicated. Common action, particularly in war and foreign relations, increases national at the expense of local patriotism and the former independent units that formed the federation tend to become for many purposes mere convenient districts of administration for national functions.

In adjusting the legal distribution of powers to this tendency toward national unity several methods are in use. An easy method of amendment, by which changes in conditions and in sentiment may express themselves through the written constitution, redistributing authority as occasion demands, is one way of meeting the situation. The constitution of Switzerland, which demands for amendment only the assent of a majority of the voters and of the component cantons, is an example.

The plan of concurrent jurisdiction, in which the powers of the governments are not declared exclusive, allowing the local governments to act when the national government has not done so, provided that their acts are not inconsistent with national laws, serves a similar purpose. In this way the central government may expand its authority as national development requires by passing uniform regulations concerning matters which it formerly left to local regulation. This method avoids to some extent frequent tinkering with the constitution. Such concurrent jurisdiction was provided in the constitutions of the former German Republic and of Australia.

When the constitution excludes each government from sharing in the authority of the other and is also difficult to amend, neither of these process is possible. If, in addition, the powers granted to the central government are specific and limited, the situation is particularly difficult. This is the case in the United States, and has been met in a peculiar way. By assuming the right to review legislative acts, and by applying the doctrine of implied powers, the Supreme Court, in interpreting the Constitution, has stretched its meaning to give the central government authority never dreamed of by its creators. The brevity of the Constitution, making an elastic interpretation possible, has enabled a constitution, framed at a time when local differences and jealousies prevented large grants of national power, to adapt itself to the growing spirit of national unity and to the changed conditions of modern life.

The question of where the final authority lies to decide whether or not the two systems of government are keeping within their constitutional powers is fundamental in a federal system. In all federations this power is located in some part of the central government, since it would be dangerous to the sovereignty of the state to place it in the hands of the component members. In some federations, such as Switzerland and the former German empire, the constitution is placed under the guardianship of the national legislature, whose decision is final in case of disputes between the central and local authorities.

In these states legislative supremacy exists. In others, such as the United States and to a less extent Canada, Australia and some or the Latin American federations, the highest national court decides disputes in order to maintain the constitutional balance of power between central and local governments. In these states judicial supremacy exists.

Advantages and Disadvantages of Unitary Government:

The unitary form of government is best adapted to small states that possess geographic and ethnic unity, where uniform legislation can deal successfully with the needs of all parts of the country. It is also suited to a state whose population is not yet politically developed and hence not fitted for local self government. The strength of the unitary system results from the uniformity of law and administration throughout the whole country. It avoids the danger of inefficient enforcement by local officials in regions that oppose the national policy, and the waste fullness and extravagance that often result from the duplication of governmental machinery in a federal system.

The strength of the centralized, unitary form of government is useful also in the held of foreign policy and in time of war. Political interest centers in the national government, and a single patriotism, unweakened by local traditions and jealousies, is likely. The unitary system is also more flexible. The constitution making body does not concern itself with the territorial divisions of the country nor with the problem of distributing governmental powers between them and the central government.

The satisfactory performance of these tasks on a permanent basis is almost impossible, and they are treated as matters of internal organization to be decided from time to time by the government itself. As conditions change, and a readjustment of the powers of the central government and of the local subdivisions becomes desirable, such changes can be made by gradual legislation instead of by the slower and more difficult process of revision of the constitution.

In the unitary system all the powers of government are concentrated in a single set of authorities, so that the entire force of the government can be brought to beat upon the problem of administration. There can be no conflict of authority, no confusion regarding responsibility, no duplication of work, and no overlapping of jurisdiction.The chief weakness of the unitary system is the absence of local self government. There is danger that the central authorities, remote from the people, will determine policies and regulate matters that are of concern only to particular localities.

Not only does this cause frequent delays, during which local interests suffer while waiting for a decision from the overburdened central officials, but the decisions are often made in ignorance of local conditions and are administered by officials who know little about local needs and desires. The unitary system thus tends to discourage popular interest in public affairs and to repress local initiative. It tends to develop a centralized bureaucracy, which follows routine methods instead of making flexible adjustments. It is not suited to a state of large size, where there are a wide variety of local conditions and a diversity of political standards and ideas.

Neither is it satisfactory to a people with a well developed political consciousness and an ardent love of local liberty. The unitary system will work successfully in large democratic states only if the central authorities are willing to delegate large powers in local affairs to the local authorities. Many French writers criticize the unitary system as it works in their country and argue for a decentralization of governmental powers.

Advantages and Disadvantages of Federal Government:

The chief purposes for which states exist may be summarized as external protection and internal regulation. From the standpoint of the former, extension of the state over a considerable area is desirable, both in removing the possibility of conflict among separate units and in substituting law for war or diplomacy in settling their disputes, as well as in increasing the efficiency of the whole. In former times conquest was the only effective method of state extension.

In this process the weak were subordinated to the strong, often with the loss of their political privileges and danger of external conflict was merely changed to danger of internal revolt as soon as opportunity offered. From the standpoint of internal regulation the only effective method known to early states was that of rigid uniformity, enforced by a central authority over the entire area of the state.

This policy of external conquest and internal uniformity was perfect by Rome. However, it sacrificed the individual. prevented progress and fell to pieces from the evils inherent in it. What was needed was a method by which small units could unite peacefully without sacrificing their political life, so that each part could form a contented and integral part of the whole. Besides, some method had to be found to combine uniform regulation of common interests and local control of local affairs, to as to provide both stability and progress, union and liberty.

The federal forth of government was devised to solve this problem. Voluntary union on practically equal terms made possible incorporation without conquest. The control of general interests by a central government, and the leaving of questions that differ in different sections of the country to the people of those areas for solution, combined the strength that results from unity with the vitality and progress that result from variety.

In external affairs and in national matters a consistent policy may be followed  at the same time, each internal unit may shape its laws in conformity with local customs and conditions. People are willing to delegate large powers to a somewhat remote central government if they retain control over the local affairs that more directly affect their ordinary life. With the exception of representation, probably nothing has done more to make democracy workable over large areas than the system of federal government and in federal government the principle of representation is simply carried one step further, the local units sending their representatives to the national legislature.

The federal form of government stimulates interests in political activity, enables small areas to try experiments that might be dangerous if applied to the entire country, diminishes the dangers that threaten a state composed of diverse nationalities or interests, and relieves the central government of many burdensome functions. It is especially suited to states of vast area and diversity of conditions, or to states whose populations are divided by geographical, racial, or other barriers, and who can be reconciled to political unity only if allowed a considerable degree of local autonomy.

Under special conditions federation is particularly valuable. It enables a growing spirit of nationality and unity to manifest itself, even though local differences are powerful enough to prevent complete fusion and, as a means of expansion and development in a new country allows special needs to be met as they arise and frontier conditions to be dealt with in a way unsuited to longer established sections.

The formation of Germany and the United States, and the expansion of the latter, are examples. Federalism has thus been the means of uniting many small states which otherwise would never have surrendered their independence at the same time, in the internal organization of the large state formed by their union, the federal system has prevented the rise of a despotic, bureaucratic authority and has conserved the political liberty of the people. Many writers have extolled the merits of the federal principle and have urged its further application in the formation of larger political units, even to the extent of a world federation.

The federal form of government, because of its very nature, has certain inherent weaknesses. If disputes and divided authority that should be limited to internal affairs are carried into foreign relations, a federation is handicapped when opposed to a more centralized state. The members of the federal union, because of their rights over persons and property and their right to legislate in certain matters, may seriously embarrass the national government in enforcing its treaty obligations. The experience of the United States bears witness to this difficulty. At the same time, the central government, by making treaties, may encroach upon powers which the constitution intended to leave in the hands of the states.

The expense and delay caused by a double system of government, in which much work is needlessly duplicated, are recognized as serious objections to federal government. There are also serious difficulties in the administration of justice caused by the network of political boundaries with independent jurisdictions. Unwilling witnesses may leave the jurisdiction where their testimony is needed property may be removed to another jurisdiction to avoid taxation and troublesome extradition proceedings are necessary in order to bring back fugitives from justice who flee from the region where the crime was committed. The defects of the federal system would be diminished if the boundaries of the political divisions could be drawn accordance with political needs.

These boundaries, however are seldom the result of deliberate action, but are usually of historical development, being those of the original sovereign states that combined to form the union. Once made, they are difficult to change, with the result that the subdivisions seldom cones pond to the real political needs of the country. A properly devised system of political units should meet two requirements.

The districts should be sufficiently unlike in their condition and problems to warrant their separate political authority and organization, and each district should be sufficiently homogeneous to have essential unity of political interests. The actual subdivisions of those federations that were formed by historical development seldom conform to these requirements. In most cases the number of units could be reduced to advantage if constitutional difficulties and local pride did not prevent such
action.

A fundamental difficulty in the federal form of government results from the division of lawmaking power between two distinct governmental systems. There is always the danger that there may be diversity of legislation concerning matters that should receive uniform treatment, or that centralized control will be exerted over matters that should be left to local decision. The proper adjustment of central to local authority thus becomes a constant source of difficulty, and the danger of the formation of sectional factions or even of rebellion is always present. Frequent disputes concerning the respective powers of national and commonwealth governments and disputes among the commonwealths themselves have marked the history of the United States.

As conditions change, readjustments of power are constantly needed especially in the field of economic interests. In recent years the defects of federal government have become particularly noticeable as a result of the growing complexity of industrial conditions. Many questions which formerly could be left safely to the separate units for decision now demand regulation on a large scale. If industrial integration, which seems to be the present method of economic development, continues, the federal form of organization may be compelled to give way to a more centralized government capable of regulating tar, if need be, of taking control of the extensive economic activities of modern civilization. In all modern federations the national government is extending the scope of its powers and is increasingly looked to for financial assistance and for regulatory measures.

Naturally, then, there is considerable difference of opinion concerning the future of federal government. It is obviously unsuited to a people disinclined to respect the law and unwilling to acquiesce in frequent compromises. Any attempt to fix specifically and permanently the respective powers of the central government and of its subdivisions will be defective, since these powers will ultimately cease to be in harmony with changed conditions.

The form of organization suited to one people or to one time may be unsuited to another society or another stage of development. The federal system was created by the needs of its times, and, having accomplished its purpose, it may prove to be but the transition stage to a more efficient system. At the same time, there are certain advantages inherent in federalism, and some of its contributions to political methods will probably be permanently valuable. While federal states show signs of closer unification, unitary states are adopting many features of federalism.

The reorganization of the British system in the relations among the self governing dominions and Great Britain, and the establishment of a group of Russian Soviet republics, are the most conspicuous recent examples. Many writers predict a further unification of states, at present independent, on a federal basis.

Conclusion:

It should be noted that the classification of governments on the basis of functional separation into presidential and cabinet types, and on the basis of territorial division into unitary and federal types, is a cross classification. The functional separation of departments reappears in each of the territorial subdivisions. In a unitary state the central government, created by the constitution, may be either of the presidential type, as in certain Latin American states. or of the cabinet type, as in Great Britain and France.

The local sub divisions in a unitary state will have whichever type the central government creates for them or permits them to create. In a federal state the central government, created by the constitution, may be either of the presidential type, as in the united States or of the cabinet type, as in Canada.

The subdivisions of the federal state may adopt whichever type they prefer, unless there are legal restrictions in the national constitution which prevent. In practice, the subdivisions of federal states usually adopt the same form that obtains in the central government. Thus the states in the American unions have set up the presidential type of government, while the Canadian provinces have adopted the cabinet system.

The smaller local subdivisions are agents of the central government in a unitary state. Under the federal form of government the smaller local subdivisions ate agents of the governments of the component members of the union. The central government in a federation may, however, retain control over certain special areas, such as the District of Columbia in the United States, and over regions not yet fully admitted into the federal union, such as the territories and colonial dependencies of the United States.

In creating the smaller local districts a regular and symmetrical system of division and subdivision may be followed, with no overlapping of boundary lines, or special districts may be created for particular purposes with little attention to the boundaries of other districts, with a number of overlapping boundaries as a result. If the central government retains a large measure of control over the local districts, and grants to them limited powers of local self government, a centralized system exists.

If the local areas are given large and independent powers, a decentralized system exists. The usual belief that a unitary state is always centralized and that a federal state is invariably decentralized is not necessarily true. It is quite possible, as in Great Britain, for the central government of a unitary state to grant large powers of local self government to its local subdivisions, thus securing most of the advantages of both the unitary and the federal type.

It is also possible, as in some Latin American states, that the actual amount of local self government in a federal system may be relatively small. In comparison with other countries, France has a centralized government not because it has adopted the unitary form, but because the central government, instead of granting large powers of discretion to its local agencies, attempts itself to administer local affairs directly.