Examples of Federal Unions: Where several states unite themselves together under common sovereignty and establish a common central government for the administration of certain affairs of general concern, or where some provinces or dependencies are by a unilateral act of their common superior transformed into largely autonomous self-governing communities, we hate a federal union, as is often said, a federal state.
The English historian Freeman, writing in 1863, said that the four most famous federal commonwealths of history were the Achaean League in the latter days of ancient Greece, the Confederation of Swiss cantons from 1291 to the present, the United Provinces of the Netherlands, 1579-1795, and the United States of America, 1789-1863, which Freeman predicted was at that time nearing its end.
The first and last mentioned, he said, represented the perfect development of a the-federal principle which the world has ever seen. However, were Were several ancient confederations Whose constitutions must have realized the federal idea almost as perfectly as the more famous league of Achaea.
Since the publication 0f the Freeman History of the Federal government, a goodly number of federal unions have been established in various parts 0f the world. The most important of these are the Dominion Of Canada (1867), Germany (1871), considerably modified in 1919, the reorganized Swiss republic (1874), Brazil (1891), the Commonwealth of Australia (1900), and the Republic of Austria (1920).
Nature of the Federal Union:-
The historian Freeman, who employed the terms federal government and federal state without discrimination, said, The name federal government may be applied to any union of COmponent members where the degree if the union between the members surpasses that of a mere alliance, however, intimate, and where the degree of independence possessed by each member surpasses anything which can fairly come under the head of mere municipal freedom.
Again, he observed that a federal commonwealth in its perfect form forms a single state in its relations to other nations, but which consists of-many states about its internal government represents a combination of both unitary and federal principles.
It is unitary in so far as the central government possesses and exercises exclusively throughout the national territory certain powers of its own it is federal in so far as there is a division of power between the central government and the governments of’ the various states or other territorial circumscriptions which form the union.
It may be added that there has been a steady tendency in recent years in all federal unions toward the unitary principle. They have tended to become, through the process of centralization, more and more unitary in character and less and less federal.
Ordinarily, the distinguishing marks of a federal union are:
- First, some political communities (states, cantons, provinces, territories) possess the right to their own constitutions and forms of government and are supreme within a certain more or less extensive sphere.
- Second, a common constitution and government for the direct administration of certain general concerns.
Unlike a confederation, a federal union is not a mere league of independent States associated together for common defense purposes. Still, it is a union resulting from the merger of several political communities to regulate various matters common to all the component members.
It is a sort of composite state, not a band of’ states connected by international agreement. The act by which a federal union is established is not a mere compact but a constitution. It is sometimes said that it rests upon an international contract or treaty among the several states forming it.
Other writers like LeFur, Jellinek, and Haenel maintain that there are two phases or stages in forming a federal union an international stage and a constitutional stage. According to them, the union’s definitive formation (the constitutional act) is preceded by a treaty of union (the international act). This, however, may or may not be the actual procedure. It was true of the North German federal union of 1867, for it began by a treaty 0f August 6, 1866, by Which the North German states bound themselves to establish a federal union, and which was followed by the adoption of a constitution of the union.
But this was not the States’ procedure, Which formed the federal union of the United States. The simulation of the constitution was never, in fact, preceded by a treaty of union. Nor was this procedure followed in the establishment 0f the federal union 0f Brazil.
Originally a unitary state, it was decomposed into a federal union by a unilateral act of constitutional decentralization. In neither case, therefore, did the process assume an international character. A federal union resembles a real union in its external relations, while internally, it bears some resemblance to a Confederation.
On its international side, observes Hall, a central government marks it to Which the conduct of all external relations is confided and by the absence of any right on the states’ part to separate themselves from it. It differs from a confederation in the character and degree of the relationship subsisting between the members composing the union and in the possession by the former of a central organization endowed not only with practically exclusive powers about foreign affairs but also with important powers of government as regards internal affairs Of common concern.
In a federal union, the parts are subject to a common sovereign, and collectively they formed a single united state. In a confederation, the parts have no common sovereign, and they do not constitute a single political. Society, but each is itself sovereignty.
There is but one real state in the federal system, one central government, and several local governments. In short, the state is coextensive in an organization with the organization of the central government. In a confederation, on the contrary, there are as many states as there are component members.
Types of Federal Unions:-
Like Freeman, DC Tocqueville, John Stuart Mill, Wheaton, and the authors of The Federalist, some writers distinguished between perfect and. Imperfect federal unions. The difference is one mainly of degree. The former’s one which contains no elements of confederalism.
It is one in which the central government is fully supreme in all external affairs in certain specified internal affairs of general concern, which acts directly and immediately upon all individuals within the federation and possesses the power and means of enforcing its declared will. This is what the German writer Brie calls the ideal federal state.
An imperfect federal union is one in which remnants of confederalism survive, one, in short, organized more like a confederation than a unitary state. The component states possess a limited power in the management of foreign affairs; the individual state governments enforce the acts of the central government, and its powers consist simply in issuing requisitions to the state governments when, within the Proper limits of the federal authority, it is the duty of these governments to carry it out.
The German Empire of 1871- 1919 was an example of what has been called an imperfect federal union. The states composing the Empire retained a limited fight of legation and military administration. At the same time, the execution of the laws of the Empire devolved largely upon the separate state governments.
Moreover, certain states were accorded important special privileges, which they could not be deprived of without their own consent. These and other features gave it a confederate character in a more marked degree than was found in any other existing federal system.
By the constitution of 1919, the German federal union was reorganized and transformed to such an extent that it is now doubtful whether it may properly be regarded as a federal union at all. The union (the Reich, as it is officially styled) are deprived of the name of states (Staaten); they are now called Liz’ndET, the literal English translation of ‘which islands.
But their competence or sphere of action was greatly restricted they are no longer free to determine their own forms of constitution anti-government extensive powers which formerly belonged to them were handed over to the central government of the Reich, and as. to many powers left to them the central government may lay down general legislative norms or principles which must be followed, they are no longer free to-regulate their own suffrage and the distribution of the powers of government between the Reich and its territorial subdivisions may be altered at the Will of the central government.
Therefore, there is no constitutional guarantee of their autonomy, such as is usually considered an essential characteristic of a federal union. Under the old constitution, the central government depends on the local governments’ large measures to execute its powers. Still, the latter is charged with this duty, subject to the central government’s supervision and control.
In reality, therefore, the present German union more nearly approximates a unitary state’s character than that of a federal union when judged by the American standard. From the status of a federal union of a highly confederate character, it has passed very nearly to the opposite extreme, that of a centralized unitary state.
The new federal republic of Austria is a close imitation of the German firm, in which the unitary element is very prominent. Neither has the true federal system of organization. The republic of the United States possesses, like the old German Empire, though to a less extent, some of the characteristics of a confederation.
This was first pointed out by Madison, who showed that the constitution in its method of adoption, ratification, and amendment, as well as in the organization of the Senate, was confederate in principle, while as regards the sources of the powers of the government, the organization of the army, and the execution of the laws it was federal in character.
In its normal form, the government of a federal union, as has been said, acts directly upon individuals rather than upon the component state organizations. Its will is not, therefore, exerted through the local governments’ medium. Unlike the confederation, there is a general as well as local citizenship. If war breaks out among the component states, it is a civil war, not an international war.
The parts of a federal union may themselves be monarchies, or republics, or both, or they may be mere provinces, cantons, territories, or colonial dependencies. Thus, the old German federal empire was composed of kingdoms, grand duchies, duchies, principalities, and free cities, but under the present constitution, all members of the union must be republics.
Switzerland is a federation of cantons, some of which have governments organized on the representative principle, while others are pure democracies. The federal union of the United States is composed partly of republics called states and parts of dependencies called territories.
All the component states are on a footing of equality, none of them enjoying special privileges such as existed in the former German Empire. In Canada, the parts are simply provinces with more autonomy than provinces of unitary states. In Australia and the Latin American federal unions, they are officially described as states (Spanish, Estados).
Are Members of Federal Unions States?
The communities of which federal unions are composed are not states in the strict sense of the term, though in most federal systems, they are officially designated as e such. In most cases, these communities were originally sovereign and independent states. When they became federated, they naturally retained the name, a good deal of dignity, and even some of the powers of sovereign states.
But in reality, by the act of federation, they lost their sovereignty and quality, which most distinguished them as states. By merging their separate existences into a new and larger personality, they became strict law mere territorial circumscriptions of the new state thus formed, yet withal retaining a degree of local autonomy and political importance that is not enjoyed by the administrative subdivisions of a unitary state.
Unlike the latter, they have, as of right, their own constitutions, their own political arrangements, and the right to participate in the collective will. Their status’s neither that of a state in a confederation nor a province or department in a unitary state. Unfortunately, there Is no term by which this status can be appropriately designated.
While the view here expressed is that the parts of a federal union are not-in reality states, many writers, particularly among the Germans, hold contrary opinions. Since the members of a federal union possess all the attributes and characteristics 0f real states except that of full sovereignty, they may pr0perly be treated as states, rather than mere administrative circumscriptions.
Among the German writers who take this view are Laband, Jellinek, Brie, Rosin, and Seydel. Laband, in explaining the juridical nature of the former German federal empire, attributed to the component members the character of real states, while at the same time denying to them the possession of sovereignty.
His doctrine was based on the view that the essential characteristic is not sovereignty but rather the power to command and enforce obedience. Since the individual members of a federal union possess such power, they may be rightfully designated as states.
But it may well be observed. What if the power to lay down commands .and compel obedience to be a correct juristic test of the state character? It is difficult to avoid the conclusion that a province or a municipality has an equal claim to be considered a state. The possession of mere local autonomy or independence of action in certain matters more power in a local organization to express a will and enforce its commands-is, not a mark of statehood.
If a nonsovereign community may be rightfully treated as a state, the distinction between states and mere administrative districts disappears 01 becomes very indistinct. If, however, by the power to Command and compel obedience is meant only original, underived. Independent power is undoubtedly sovereignty-a power that the parts of federal unions certainly do not possess.
The individual members of a federal union have no power to determine their status in the union of which they are a part, alter their relations with one another or with the union, or determine the extent of their own jurisdiction or sphere of action. That power in the last analysis lies outside their jurisdiction, and wherever it resides, there is the state. In international relations, they are non-entities in internal affairs; they are, legally speaking, nothing but widely autonomous, largely self-governing territorial units.
Juristically speaking, the difference between them and other political entities or administrative districts is largely one of degree. In many American states, cities and sometimes counties are guaranteed a large degree of local autonomy and self-government. Therefore, according to the German doctrine, they might equally claim to be regarded as states.
Whatever the historical process by which federal unions are created, whether, as Lincoln asserted of the American federal republic, they are older than the parts or the reverse, the parts are the creations of the will of the people as a whole, and they continue to exist subject to that will. If they existed before the union’s establishment, they were re-created by the act through which it came into existence and reinvested by it with the powers they subsequently possessed.
Many writers have attempted to explain the relationship between a federal union and its parts by attributing a portion of sovereignty to each. This theory assumes that sovereignty is capable of being divided arid distributed at will. According to this view, the state formed by the union of the parts is sovereign concerning those matters that the constitution is committed to its care. Simultaneously, the component members are equally sovereign concerning those matters entrusted to them.
In other words, each is sovereign within its constitutional sphere. If, they argue, the component members are sovereign, then the union is merely a confederation; if, on the contrary, they are nonsovereign, the state is unitary since they are neither wholly the, one nor the other in a federal union, they must be partly sovereign and partly nonsovereign.
This view has been ably defended by such scholars as Waitz, Meyer, Schulze, Bluntschli, Gerber, Ruttman, Von Mohl, and Treitschke in Germany, by Freeman and Oppenheim in England, by De Tocqueville in France; -by Rivier in Belgium, and by Kent, Story, Cooley, and others in America. It is also the view that has been uniformly ‘maintained by the United States Supreme Court.
This doctrine has already been considered in the chapter on Sovereignty. The opinion was there expressed that sovereignty is a unit and cannot be divided. What is divided into a federal union is nOthing more than the powers of government.
Sovereignty is in the federation itself, that is, in the state formed by the union. What is retained by the component members is merely local autonomy concerning certain matters. This is the view of the vast majority of jurists and political scientists today.
How Federal Unions Are Created:
Federal unions have been created in one of two ways first, and this has been the usual procedure, they have been formed by a voluntary coalescing of several sovereign and independent states or, second, a process of decomposition or decentralization has established the federal system as where a centralized unitary state has been federalized by a unilateral constitutional act by which its provinces were erected into autonomous states and the competence and powers of the former divided with the latter.
In such a case, the establishment of the federal system is not the result of the component members’ concurrent action. Still, it is due to the central government’s initiation and action of the unitary state, which is thus transformed into a federal union. The creation of a federal republic furnished an example of the latter method out of the provinces of the Empire of Brazil in 1889.
A somewhat similar procedure was when the colonial provinces of British North America and the Australian colonies were federated in 1867 and 1900, respectively. In both cases, the federation was constructed, not out of already existing indecent dent states, as was the case in the United States and Germany, but out of a group of colonial dependencies.
Essential. Conditions and Elements:-
Two conditions observed Dicey, must be present in the formation of a federal union,
First, there must be a body of communities (states, cantons, colonies, provinces) connected by locality, history, race, or the like, capable of bearing in their inhabitants’ eyes, an impress of common nationality.
Second, there must exist a very peculiar-sentiment among the inhabitants that are; they must desire union without unity, must be able to adjust the conflicting ideas of union and separation, and to reconcile the advantages of national unity with the disadvantages of a division of power and diversity of legislation.
There must be a wish to form a single state for many purposes without surrendering each individual’s individual existence.
A federal-state indeed is nothing more than a political contrivance intended to reconcile national unity and power with the maintenance of state rights through an adjustment satisfactory to both elements. The history of federal unions shows that they have generally been formed under international necessity pressure rather than under that of internal needs.
Whatever the method of procedure by which a federal union is established, there must be a common organic act or constitution defining the relation between the union and the parts of which it is compOsed and marking out for each its own sphere of action.
This constitution must be paramount to the component members’ constitutions; otherwise, the maintenance of the federation intact will be impossible. It is also essential that it should be & Written instrument. The foundations of a federal state, to quote Dicey again, rest on a complicated contract. The arrangements that it establishes cannot safely be left to mere understanding or convention, as is possible in a unitary state. It should be written and should possess a certain degree of rigidity; that is, it should be incapable of alteration by either the central or local governments.
Finally, it is almost necessary that there should be a common tribunal empoWered to interpret the prescriptions of the federal constitution, to judge of the limits of the respective spheres of the central and local governments, and to hold in restraint the tendencies of each to encroach upon the domain assigned by the constitution to the other.
This tribunal should decide all controversies among the component states themselves and all constitutional disputes between them and the central government. It ought to have also the power to set aside the provision of any local constitution or law which is ins consistent with the constitution or laws of the union. Without some such arbiter or umpire, the maintenance of the federal system Would be difficult.