Understanding Federalism: Principles and examples

• POST/PLSC 3303 is a course in the Department of Economics Justice & Policy Studies.

Course Components

• Participation is worth 15% of the grade and includes attendance and contributions to discussions related to readings
• The Midterm Examination is worth 25% of the grade and is scheduled for February 12, 2025 and a study guide will be posted on D2L.
• The Briefing Note is worth 30% of the grade, is due March 21, 2025, and the topic will be based on a list of ideas posted on D2L with the proposal due February 28, 2025.
• The Final Examination is worth 30% of the grade and a study guide will be posted on D2L with scheduling by the registrar.
• Some readings will be assigned to different groups to lead discussions and provide critical evaluation.

Federalism Defined

• Federalism divides powers between multiple levels of government.
• Federalism is a structure where multiple levels of government represent and are responsible to the same people within the same territory.
• Federalism is the division of powers between a central government and regional "sub-national units".
• Jurisdictions/powers are distributed in a constitution while sovereignty is both divided and sometimes shared.

Why Federalism

• Federalist 10, by James Madison (1751-1836), discusses federalism.
• The Federalist Papers include writings by Alexander Hamilton, James Madison, and John Jay(Publius).
• Federalism provides democratic protections against faction and inadequate representation.
• James Madison identified the problem of 'faction' and its relation to democratic freedom using the term "tyranny of the majority".
• “Faction' concerns a number of citizens acting on a common impulse that goes against the rights of other citizens or the community's interests.
• The solutions for 'faction' involve removing its causes(destroying liberty) and controlling its effects.
• A federal republic can control the effects and will have a large national government with representative democracy.
• The size and diversity of a large country make it harder for any one faction to dominate.
• Local governments can be more sensitive to communities, but prevent factions from causing tyranny.
• Representative democracy can promote sensible statespeople with 'enlightened views and virtuous sentiments'.
• Federalism balances benefits of size with prevention of tyrannical government.
• Federalism distributes/limits power and has Constitutional limits/protections.
• Federalism allows for economies of scale, a united front, responsiveness to local communities and equity among constituent units.
• Political scientist K.C. Wheare defined federalism as the division of government powers.
• K.C. Wheare stated that there is a single independent authority for the whole area in respect to some matters, and that there are authorities coordinate with, and not subordinate to, the others within its own prescribed sphere."
• There are about 25 federal states around the world.
• Canada was the 6th modern federation in history, after the USA, Mexico, Venezuela, Switzerland, and Argentina.
• The USA was the first modern federal system.
• Others include Australia, Germany, Belgium, India, and Brazil.
• Federations can be presidential republics or parliamentary democracies or a mixture.
• A continuum of centralization exists among separation(sovereign states), decentralization(confederation and federalism), centralization(devolution) to the integration of unitary states.

Why Federalism Was Suited to Canada

• Decentralization is an alternative to remote national governments.
• Federalism is advantageous where linguistic, religious, or cultural diversity are factors.
• Federalism Provides a check on government power.
• The 'Fathers of Confederation' chose federalism in Canada to manage francophone and anglophone tensions.
• Quebec's concerns about losing power were a consideration
• It was adopted to protect the Maritimes' interests.
• The member colonies of Canada had experience with self-governance and had developed their own political cultures that they wanted to preserve.
• Federalism allowed autonomy and diversity.

Federalism in Canada - Models

• Bakvis & Skogstad outlined Models to define Canadian federalism
• Watertight compartments happened between 1867 – 1930s.
• Consultation & coordination happened between 1930s – 1950s.
• Cooperative federalism happened between 1950s – 1960s.
• Competitive federalism happened between 1970s – 1980s.
• Collaborative federalism happened between 1990s – 2000s.
• Open federalism happened between 2006-11.
• Canada also contains intrastate, interstate and executive federalism.
• Interstate federalism formalizes relations between national and provincial governments resembling relations between countries.
• Intrastate federalism addresses federal concerns via national government institutions.
• Executive federalism is where the executives of both levels of government compete & collaborate.
• Due primarily to our Westminster-style parliamentary system, "executive federalism” has been the prevailing pattern in Canada.

Federalism Objectives

• One primary objective of federalism is to strike a jurisdictional balance between 2 levels of government.
• Federalism is a political arrangement that institutionalizes diversity.
• Federalism builds nationhood and national unity via levels of government where none is present naturally.
• Federalism is an artificial political and governing structure.

Federalism Constitutional Parameters

• Government powers are divided and distributed using a written constitution detailing which level gets to do what.
• Federations typically have a constitutional principle (or doctrine) of paramountcy.
• Paramountcy means that if there's a clash between similar federal and provincial powers, the federal power indicated in the constitution prevails.
• The Constitution Act, 1867 (the BNA Act) contains 2 division of powers sections: Section 91 and Section 92
• Section 91 enumerates federal powers while section 92 specifies provincial powers.
• Section 91 deals with Public Debt and Property, Trade and Commerce , Unemployment insurance, Taxation, Postal Service, ect
• In Section 92 Each Province makes Laws in relation to: Direct Taxation, Borrowing of Money , Public Lands, Prisons, Marine Hospitals , and Municipal Institutions
• Additionally each Province makes Laws in relation to : Licenses, Local Works , Incorporation of Companies, Marriage, Property and Civil rights etc
• S.92(16) indicates Matters of a merely local for private nature in the province
• Other sections provide the provinces jurisdiction over renewable resources and education.
• Concurrent jurisdiction is where both Ottawa and the provinces have jurisdiction.
• Immigration and agriculture are two examples.
• The BNA Act/CA 1867 reflects an intention for the federal government to be the dominant power.
• That intention is found in Ottawa's "4 autonomous powers" contained in the CA 1867.
• Section 90, the federal powers of reservation last used 1961 are re: provincial laws and disallowance used in 1943.
• Sections 91(29) and 92(10)(c) concern the federal declaratory power over provincial legislation last used in 1961.
• The preamble to section 91 contains the P.O.G.G. power - peace, order, and good government.
• Only POGG is an active law of the 4 autonomous powers.
• Additionally, the other 3 powers are either dormant or spent.
• POGG, aka the residual clause, has been limited to 3 contingencies: emergency use; to fill in gaps where jurisdiction is not settled; when a "national concern" exists.
• Gaps exist between the “jurisdictional map" provided by the Constitution, and what goes on in governments.
• Federal/provincial government's actions must be compliant with the Charter.
• The overlapping powers and federal financial dominance is a poor guide to determining levels within the federal system.
• Many lines are now blurred between which level does what.
• There is a significant degree of collaboration between the two levels as well as significant amounts of conflict.
• Such conflicts end up at the Supreme Court of Canada (SCC) to decide intergovernmental disputes via judicial review of the constitution.
• Prior to 1949, the highest court reviewing such matters was the Judicial Committee of the Privy Council [JCPC].
• Courts provide constitutional protection of rights + clarity/protection of the division of powers.
• Debates persist between parliamentary and judicial supremacy.

Federalism Basic Types

• The American model is a presidential republic.
• The Canadian model is a parliamentary democracy.
• The German model is a traditional continental European model with a council as 2nd chamber.
• The European Union (EU) model is a confederate, not federal, structure.

Federalism Complexities

• Complexities include Bicameral Legislatures and restraints upon the pure democracy of majority rule.
• Bicameral legislatures include Canadian Senate, German Bundesrat, United States Senate.
• Executive Federalism seeks to leverage collective power of regional governments.
• First Ministers Conferences are a form of executive federalism and can raise democratic questions
• How public finances are allocated represents Fiscal Federalism and are often contentious
• Fiscal Federalism often blurs accountability and responsibility while raising democratic challenges
• Asymmetrical Federalism is where different regional governments are more sovereign/ have more powers than others.
• Where governments are interdependent areas exist where powers overlap, intersect, and conflict.
• Federalism = negotiation/bargaining/diplomacy – compromise, cooperation & contention
• "sunny ways" represents Justin Trudeau's borrowing from Wilfred Laurier's approach to the Francophone language dispute in Manitoba.
• Both overt challenges – political & legal exist.

Federalism Contested Concepts

• Provincial equality occurs vs cultural dualism.
• Symmetry exists vs asymmetry.
• Federalism often does not reflect First Nations with visions on how to relate with the Canadian State.
• It occurs with Indigenous people living off-reserve.
• Economic balance complications occurs – as elsewhere in our federation.
• Autonomy vs interdependence are concepts in contention.
• At its best can establish universal standards and protections while allowing flexibility in program design/delivery – “Althusian compromise".

Explore federalism's core principles, including the division of powers and sovereignty. Understand its mechanisms, representation, and challenges in crises, drawing from course examples, and James Madison's arguments. Explore critical engagement with course themes through independent research in the POST/PLSC 3303 course.