The Online Library of Liberty

A project of Liberty Fund, Inc.

• Pubusher's Note
• Foreword
• Preface to the First Edition
• Preface to the Eighth Edition
• Introduction
• Outline of Subject: the True Nature of Constitutional Law
• Part I: The Sovereignty of Parliament
• Chapter I: The Nature of Parliamentary Sovereignty
• Chapter II: Parliament and Non-sovereign Law-making Bodies
• Chapter III: Parliamentary Sovereignty and Federalism
• Part II: The Rule of Law
• Chapter IV: The Rule of Law: Its Nature and General Applications
• Chapter V: The Right to Personal Freedom
• Chapter VI: The Right to Freedom of Discussion
• Chapter VII: The Right of Public Meeting 1
• Chapter VIII: Martial Law
• Chapter IX: The Army 1
• Chapter X: The Revenue 1
• Chapter XI: The Responsibility of Ministers
• Chapter XII: Rule of Law Compared With Droit Administratif 1
• Chapter XIII: Relation Between Parliamentary Sovereignty and the Rule of Law
• Part III: The Connection Between the Law of the Constitution and the Conventions of the Constitution
• Chapter XIV: Nature of Conventions of Constitution
• Chapter XV: The Sanction By Which the Conventions of the Constitution Are Enforced
• Appendix
• Note I: Rigidity of French Constitutions
• Note II: Division of Powers In Federal States
• Note III: Distinction Between a Paruamentary Executive and a Non-parliamentary Executive
• Note IV: The Right of Self-defence
• Note V: Questions Connected With the Right of Public Meeting
• Note VI: Duty of Soldiers Called Upon to Disperse an Unlawful Assembly
• Note VII: The Meaning of an “unconstitutional” Law
• Note VIII: Swiss Federalism 89
• Note IX: Australian Federalism 101
• Note X: Martial Law In England During Time of War Or Insurrection 121
• Note XI: Constitution of the Tribunal Des Conflits 159
• Note XII: Proceedings Against the Crown
• Note XIII: Parliament Act, 1911 [i & 2 Geo. 5. Ch. Ch. 13.]

Note II

DIVISION OF POWERS IN
FEDERAL STATES

A student who wishes to understand the principles which, under a given system of federalism, determine the division of authority between the nation or the central government on the one hand, and the States on the other, should examine the following points:—first, whether it is the National Government or the States to which belong only “definite” powers, i.e. only the powers definitely assigned to it under the Constitution; secondly, whether the enactments of the Federal legislature can be by any tribunal or other authority nullified or treated as void; thirdly, to what extent the Federal government can control the legislation of the separate States; and fourthly, what is the nature of the body (if such there be) having authority to amend the Constitution.

It is interesting to compare on these points the provisions of five different federal systems.

THE UNITED STATES

• 1.The powers conferred by the Constitution on the United States are strictly “definite” or defined; the powers left to the separate States are “indefinite” or undefined. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”12 The consequence is that the United States (that is, the National Government) can claim no power not conferred upon the United States either directly or impliedly by the Constitution. Every State in the Union can claim to exercise any power belonging to an independent nation which has not been directly or indirectly taken away from the States by the Constitution.
• 2.Federal legislation is as much subject to the Constitution as the legislation of the States. An enactment, whether of Congress or of a State legislature, which is opposed to the Constitution, is void, and will be treated as such by the Courts.
• 3.The Federal government has no power to annul or disallow State legislation. The State Constitutions do not owe their existence to the Federal government, nor do they require its sanction. The Constitution of the United States, however, guarantees to every State a Republican Government, and the Federal government has, it is submitted, the right to put down, or rather is under the duty of putting down, any State Constitution which is not “Republican,” whatever be the proper definition of that term.
• 4.Changes in the Constitution require for their enactment the sanction of three-fourths of the States, and it would appear that constitutionally no State can be deprived of its equal suffrage in the Senate without its consent.13

THE SWISS CONFEDERATION

• 1.The authority of the national government or Federal power is definite, the authority of each of the Cantons is indefinite.14
• 2.Federal legislation must be treated as valid by the Courts. But a law passed by the Federal Assembly must, on demand of either 30,000 citizens or of eight Cantons, be referred to a popular vote for approval or rejection. It would appear that the Federal Court can treat as invalid Cantonal laws which violate the Constitution.
• 3.The Federal authorities have no power of disallowing or annulling a Cantonal law. But the Cantonal Constitutions, and amendments thereto, need the guarantee of the Confederacy. This guarantee will not be given to articles in a Cantonal Constitution which are repugnant to the Federal Constitution, and amendments to a Cantonal Constitution do not, I am informed, come into force until they receive the Federal Guarantee.
• 4.The Federal Constitution can be revised only by a combined majority of the Swiss people, and of the Swiss Cantons. No amendment of the Constitution can be constitutionally effected which is not approved of by a majority of the Cantons.

THE CANADIAN DOMINION

• 1.The authority of the Dominion, or Federal, government is indefinite or undefined; the authority of the States or Provinces is definite or defined, and indeed defined within narrow limits.15From a federal point of view this is the fundamental difference between the Constitution of the Dominion on the one hand, and the Constitution of the United States or of Switzerland on the other.The Dominion Parliament can legislate on all matters not exclusively assigned to the Provincial legislatures. The Provincial or State Legislatures can legislate only on certain matters exclusively assigned to them. Congress, on the other hand, or the Swiss Federal Assembly, can legislate only on certain definite matters assigned to it by the Constitution; the States or Cantons retain all powers exercised by legislation or otherwise not specially taken away from them by the Constitution.
• 2.The legislation of the Federal, or Dominion, Parliament is as much subject to the Constitution (i.e. the British North America Act, 1867) as the legislation of the Provinces. Any Act passed, either by the Dominion Parliament or by a Provincial Legislature, which is inconsistent with the Constitution is void, and will be treated as void by the Courts.
• 3.The Dominion Government has authority to disallow the Act passed by a Provincial legislature. This disallowance may be exercised even in respect of Provincial Acts which are constitutional, i.e. within the powers assigned to the Provincial legislatures under the Constitution.16
• 4.The Constitution of the Dominion depends on an Imperial statute; it can, therefore, except as provided by the statute itself, be changed only by an Act of the Imperial Parliament. The Parliament of the Dominion cannot, as such, change any part of the Canadian Constitution. It may however, to a limited extent, by its action when combined with that of a Provincial legislature, modify the Constitution for the purpose of producing uniformity of laws in the Provinces of the Dominion.17But a Provincial legislature can under the British North America Act, 1867, s. 92, sub-s. 1, amend the Constitution of the Province. The law, however, amending the Provincial Constitution is, in common with other Provincial legislation, subject to disallowance by the Dominion government.

THE COMMONWEALTH OF AUSTRALIA

• 1.The authority of the Federal government is definite; the authority of each of the States, vested in the Parliament thereof, is indefinite.18
• 2.Federal legislation (i.e. the legislation of the Commonwealth Parliament is as much subject to the constitution as the legislation of the State Parliaments. An enactment whether of the Commonwealth Parliament or of a State legislature which is opposed to the Constitution of the Commonwealth, is void and will be treated as such by the Courts.
• 3.The Federal or Commonwealth government has no power to annul or disallow either directly or indirectly the legislation of a State Parliament.
• 4.Amendments of the Commonwealth Constitution may be effected by a bill passed by the Commonwealth Parliament, or under some circumstances by one only of the Houses of the Commonwealth Parliament, and approved of by a majority of the voting electors of the Commonwealth, and also by a majority of the States thereof.19Note however that (i) many provisions of the Constitution may under the Constitution be changed by an ordinary Act of the Commonwealth Parliament.20(ii) The Commonwealth Constitution being an Act of the Imperial Parliament may be altered or abolished by an Act of the Imperial Parliament.

THE GERMAN EMPIRE

• 1.The authority under the Constitution of the Imperial (Federal) power is apparently finite or defined, whilst the authority of the States making up the Federation is indefinite or undefined.This statement, however, must be understood subject to two limitations: first, the powers assigned to the Imperial government are very large; secondly, the Imperial legislature can change the Constitution.21
• 2.Imperial legislation at any rate, if carried through in a proper form, cannot apparently be “unconstitutional,”22 but it would appear that State legislation is void, if it conflicts with the Constitution, or with Imperial legislation.23
• 3.Whether the Imperial government has any power of annulling a State law on the ground of unconstitutionality is not very dear, but as far as a foreigner can judge, no such power exists under the Imperial Constitution. The internal constitutional conflicts which may arise within any State may, under certain circumstances, be ultimately determined by Imperial authority.24
• 4.The Constitution may be changed by the Imperial (Federal) legislature in the way of ordinary legislation. But no law amending the Constitution can be carried, if opposed by fourteen votes in the Federal Council (Bundesrath). This gives in effect a “veto” on constitutional changes to Prussia and to several combinations of other States.Certain rights, moreover, are reserved to several States which cannot be changed under the Constitution, except with the assent of the State possessing the right.25

[12]Constitution of United States, Amendment 10.

[13]Constitution of United States, art. 5.

[14]See Constitution Fédérale, art. 3.

[15]See British North America Act, 1867, ss. 91,92.

[16]See British North America Act, 1867, s. 90; and Bourinot, Parliamentary Practice and Procedure, pp. 76–81.

[17]British North America Act, 1867, s. 94.

[18]Commonwealth Constitution Act, ss. 51, 52, 106, 107.

[19]Constitution, s. 128.

[20]See e.g. Constitution, ss. 7, 10.

[21]See Reichsverfassung, arts. 2. and 78.

[22]See on the moot question whether the Reichsgericht and the Courts generally can treat a statute passed by the Diet (Reichstag) as unconstitutional, Lowell, Governments and Parties inContinental Europe, i. pp. 282–284.

[23]Reichsverfassung, art. 2; and Labaud, Staatsrecht des Deutschen Reiches, s. 10.

[24]Reichsverfassung, art. 76.

[25]The South African Union. —The constitution of the South African Union, it has been well said, “is frankly not in any real sense federal.” The Act under which it is framed “does not restrict in any substantial manner the Parliament's power to alter the provisions of the Constitution. It is especially laid down in s. 252 that Parliament may by law repeal or alter any of the provisions of the Act, provided that no provision thereof for the operation of which a definite period of time is fixed shall be repealed or altered before the expiration of such period, and also provided that no repeal or alteration of the provisions of the section itself, or of ss. 33 and 34 relative to the numbers of the members of the Legislative Assembly, prior to the expiration of ten years, or until the total number of members of the Assembly has reached 150, whichever occurs later, or of the provisions of s. 35 relative to the qualifications of electors to the House of Assembly, or of s. 137 as to the use of languages, shall be valid, unless the Bill containing the alterations is passed at a joint sitting of the Houses, and at its third reading by not less than two-thirds of the total number of members of both Houses. The section is well worded, as it obviates the possible evasion of its spirit by the alteration of the section itself.” Keith, South African Union, Reprinted from the Journal of the Society of Comparative Legislation, pp. 50, 51. See also Brand, The Unionof South Africa, especially chap. xi.