Comparative Federalism: A Study in Judicial Interpretation

211 Pages·1964·5.4 MB·English

by  Victor S. Mackinnon M.A.

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COMPARATIVE FEDERALISM
A Study in Judicial Interpretation
by
VICTOR S. MACKINNON
M.A., LL.B. (Glas8OW,) LL. M., SID. (Harvard)
Senior Lecturer in Comparative Constitutional Law,
University of Edinburgh
FOREWORD BY
ARTHUR E. SUTHERLAND
Harvard Law School
MAR TINUS NIJHOFF / THE HAGUE
MAR TINUS NIJHOFF - PUBLISHER - THE HAGUE
The underlying premiss of this book is that a constitution is something
more than a set of procedural rules. Rather, it should be viewed as an
organic creation, as a point of departure, and not merely a description of
a status quo which is to be maintained. The role of judicial interpretation
and application of basic texts is a crucial one to this dynamic function.
In federal systems the judicial branch is frequently charged with the
task of reviewing exercises oflegislative power, federal and state, in the
light of whether that legislation impairs a balance between economic
freedom of competition, the protection of local state autonomy, and a
measure of national uniformity. The author endeavours to show that in
all systems where similar such objectives can be identified, then, while
the terms of their respective constitutions may shape the methods of
judicial reasoning under them, they do not necessarily dictate the solutions
reached. These several but similar objectives will be reflected in similar
solutions to problems encountered by all, irrespective of differences in
political structure and functioning among those systems, and irrespective
also of terminological differences in the expression of the basic consti
tutional texts as to grants of power and limitations on power.
These arguments are developed and illustrated by means of a compara
tive analysis of a major problem of federalism, viz., the regulation and
taxation of trade and commerce among the Member States of a federal
union. The systems selected for study are those of the United States
of America, Canada, and Australia, whose experience the author believes
to have substantial background relevance for all federal countries and,
in particular, to the emerging problems of the European Communities.
About the author: Born 1928. Studied at the University of Glasgow (M.A., LL.B.). After
a period of practice as a Solicitor in Scotland, engaged in further study at the
Harvard Law School. (LL. M., S. f. D.) He is now Senior Lecturer in Comparative Consti
tutional Law in the University of Edinburgh.
1964. XXVII and 188 pages. Guilders 21.40
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COMPARATIVE FEDERALISM
COMPARATIVE FEDERALISM
A Study in Judicial Interpretation
by
VICTOR S. MACKINNON
M.A., LL.B. (Glasgow), LL.M., S.l.D. (Harvard)
Senior Lecturer in Comparative Constitutional Law,
University 0/ Edinburgh
FOREWORD BY
ARTHUR E. SUTHERLAND
Harvard Law School
•
THE HAGUE MARTINUS NIJHOFF 1964
To
My Parents
ISBN 978-94-011-823 7-9 ISBN 978-94-011-8910-/ (eBook)
001 10.1007/978-94-01 J --89/0-1
Copyright I964 by Martinus Nijhott, The Hagu~. Netherlands
All rights reserved, i.ncluding the right to. trans/ale 0" to.
reprodllce this book or parts thereof in any form
FOREWORD
Modem societies, - like organized societies of all eras, - suffer from
antithetical aspirations, from competing institutionalizations of that
which is desirable, and that which, though unwelcome, is inevitable.
Men clearly see the advantages of localism, of the self determination of
small peoples, of l' amour du chocher uninhibited by imperial sovereign
ty. At the same time men everywhere are seeing the clear necessity of
bigness in organization of national effort. When the question is military
organization no one has much doubt that strength derives from power
ful union. The Swiss, to be sure, have continued independent not
because of their power, but because of the convenience of their in
dependent existence. In a world-society of titans, there must be
members who are small, respected, independent and unfeared, available
to be intermediaries. If Switzerland did not exist, it would have been
necessary to invent her. But the power centers are those with the big
battalions and the megatons of bombs; both demand great aggregates.
Tomorrow's military power structure is calculated in the hundreds of
millions of people. The world will afford only a few Switzerlands.
The drive toward bigness is as inevitable in the economic world as
in that of destructive machines. Economic problems in the next
century, and in the next after it, will require the concentrated re
sources of the nations; we must produce adequate food for the billions,
or else billions will war against billions. We must organize the immense
energies required to turn the salt water of seas into the sweet waters of
civilization, or millions will die of drought.
The prototype reconciliation of local autonomy with the necessity of
major organization was that of the United States in I787. Its difficulties
have been many; federalism is not a self-evident process. Its political
theory was as simple, however, as its implementation has been
complex. Let us, we said, decide what things are necessarily done by
VI FOREWORD
great aggregates of people, and what, on the other hand, are suitable
for local whim. Let us then write in a great charter a description of that
which will be done by the national many, and that which will be left to
the local few. In this way, we thought, we shall have the best of two
possible worlds.
In the United States we early found out that our constitutional
words were not as universally resolving as we had hoped. To allot
economic power among the thirteen commonwealths of our fledgling
nation, our formula was to ascribe to the aggregate government
"commerce with foreign nations and among the several States,"
saving all the rest of our economic life to our local entities. At once we
found out that even our simple pioneer society was too complex thus
to divide into clearly separate functions. What was local sometimes
also seemed like that which was national; local events had national
repercussions, making national control unavoidable. Fortunately, we
had invented a governmental institution which provided a means of
arbitrating such innumerable interstitial questions of federal existence.
Dedicated as we were to the ideal of electoral majoritarianism, we
nevertheless had created an appointive Supreme Court, constitutionally
exempted from the compulsions of popularity. Much as we paid lip
service to a simple concept of frontier egalitarianism, to the converti
bility of any honest man for another, here we set up, secure for life,
an intellectual judicial governing elite. To this extraordinary body we
entrusted the umpiring of the federal system, the case-by-case decision
of what in our economy should be local, and what should be national.
As the world has developed in the century-and-three-quarters since
1787, more and more people have discovered the possibilities, - perhaps
the somewhat illusory possibilities, - of federal structure. Illusory or
not, "federalism" has become increasingly popular; and with it has
necessarily grown the prevalence of an institution like the Supreme
Court of the United States.
Dr. Victor MacKinnon in this volume has given us a philosophical
analysis of the intellectual and of the pragmatic operation of such
courts in Canada, in Australia, and in the United States. Wisely, he has
inscribed on his introductory page Mr. Justice Johnson's conclusion
a century and a half ago that "half the doubts in life arise from the
defects of language"; one only wonders why the Justice limited his
proportion to such a small share. For as the author shows us, in each
of the federal unions he analyzes, although the language in the con
stituent document of each allots some functions to nation and some to
the several component political units, the judges in each have dis-
FOREWORD VII
covered that the analytical process of interpreting this language, - that
the substantive problems which underlie superficial clarity of words, -
turn out to be much the same regardless of the differing verbal for
mulations in the several constituent charters.
In pursuit of his analysis of these constructional processes, Dr.
MacKinnon has followed his national tradition of the close analysis of
specific cases. He has studied more than three hundred and seventy
opinions of the Privy Council, of the highest courts of Australia,
Canada, and of the United States. He explores the difficulties of
describing that portion of the economy which is essentially national,
in contrast to that which is essentially local. He scrutinizes the differ
ence, theoretical rather than practical, between national "regulation"
and national "prohibition." He turns the lens of an intellectual
microscope on the difference between that which is local and that
which is national in the process of manufacture. He examines a series
of such problems which alike in the three nations which make up his
subject matter, have arisen to plague the courts which ultimately pass
upon the division of governing functions in their respective countries.
The reader who studies Dr. MacKinnon's work would make a mistake
if he limited his consideration to its value solely as a work of historical
analysis. In a world of increasing economic complexity and inter
relation, some form of organization resembling the federal structure of
Australia, of Canada, or of the United States, is quite likely to grow
up among large groups of nations now discrete. The Common Market
in Europe follows the pattern of growth of federal union on the North
Atlantic seaboard between 1755 and 1789, not because of imitation,
but out of the sheer necessity of societal growth. In Africa and in Asia
new federal unions are appearing. The federal plan is, for our time, the
probable pattern of future national aggregates.
Thus Dr. MacKinnon's book is a prediction of things to come. The
philosopher of political organization will do well to read the lessons
implicit in his scholarly exposition.
ARTHUR E. SUTHERLAND
Cambridge, Massachusetts
March, 1964.