Year XXXVIII, 1996, Number 3 - Page 152

 

 

Wheare’s Federal Government and Europe Today*
 
JOHNPINDER
 
 
When the first edition of Wheare’s Federal Government was published fifty years ago, it was the first comparative study of modern federal government in English, and probably in any language; and it provides knowledge and insights about federal systems still unobtainable from any other single source. This Introduction will seek to explain its relevance in Europe today. But first, a reader whose impression of British attitudes to federalism is based on observation of the contemporary British political scene may wish to know why such a book came from what may seem to be an unlikely source.
Kenneth Wheare was born in 1907 (the same year as Altiero Spinelli) in Australia. So he grew up in a federal state, whose constitution had been enacted by the Westminster parliament only six years before. After studying at the University of Melbourne, he went to Oxford in 1929 and remained there for the rest of his life. He pursued a distinguished academic career, becoming Lecturer in 1934, Professor in the prestigious Gladstone Chair of Government and Public Administration in 1944, Rector of Exeter College in 1956 and Vice-Chancellor (the British term for Rector Magnificus) of the University of Oxford 1964-66. He was a leading specialist on constitutions, especially those of the British Commonwealth.[1] The Commonwealth contains a number of federal constitutions, all of them enacted by the Westminster parliament for former colonies or Dominions. But the knowledge of federal systems that stemmed from his interest in Commonwealth constitutions does not fully explain why Wheare wrote Federal Government.
 
Wheare and Federal Union.
 
From 1939 to 1944 Wheare was a Fellow of University College, Oxford, where William Beveridge, who went on to become the founder of the welfare state, was the Master (another name for Rector) from 1937 to 1944. Beveridge had been the Director of the London School of Economics for eighteen years before coming to Oxford and had transformed it into one of the world’s leading centres of scholarship in the social sciences. In the course of doing so he had attracted to the LSE a number of great scholars, including some who were notable federalists, in particular Harold Laski, Lionel Robbins, Ivor Jennings and Friedrich Hayek.[2] These were among the brilliant group of federalists whose thinking became crystallised in the British Federal Union movement and whose literature was, together with the writings of Luigi Einaudi, a decisive influence on the federalist commitment of Altiero Spinelli” which originated during his confinement on Ventotene.[3] When Derek Rawnsley, one of the three young founders of the movement and a former student at University College, asked Beveridge to become Chairman of a research centre that Federal Union intended to establish, Beveridge accepted.
Beveridge had an extraordinary ability to get other people to work for him and, until the fall of France in June 1940 when the British began to concentrate on a total war effort, the Federal Union Research Institute engaged in a remarkable burst of activity through committees and conferences organised to study the constitutional and economic aspects of a European federation, to be established after the war had been won.
These studies were undertaken by “the best talent available”.[4] Beveridge chaired both the economic and the constitutional conferences, assisted by Patrick Ransome, another of Federal Union’s young founders, and Harold Wilson, then a young Fellow of University College and subsequently the Labour Prime Minister who was responsible for Britain’s second application to join the European Community. The economists included Robbins, who had recently written two path-breaking books that analysed the need for federal government to regulate the international economy, the second of which also urgently advocated European federation. These books were to have a profound influence on Spinelli when he read them while a political prisoner on Ventotene. They were the most-cited sources in the essays that Spinelli wrote while he was on the island; and he translated the second one into Italian.[5] Others among the economists were Barbara Wootton, later to be Leader of the Labour Party in the House of Lords, who explained, in one of the series of Federal Tracts, why federation would be a prerequisite for a satisfactory socialism;[6] James Meade, of social democratic orientation, who was to become a Nobel Prize winner; and Hayek, who had recently written an article explaining why liberals should advocate federation and whose books were also cited in Spinelli’s essays.[7]
The principal participants in the constitutional conferences were Professor A.L. Goodhart, another Fellow of University College, who was to write a chapter on the US Constitution for a book that resulted from the Research Institute’s work;[8] Lionel Curtis, a veteran federalist and co-founder of the Royal Institute of International Affairs;[9] Ivor Jennings, the most distinguished British constitutional jurist of his generation, who wrote in 1940 A Federation for Western Europe, expounding the need for a European federation and containing a draft constitution that was a result of the Research Institute’s conferences; and last but not least, Kenneth Wheare. This brief description of the work done under Beveridge’s chairmanship may give the reader some idea of the excitement that must have been generated by the common endeavour of these brilliant people, in the shadow of the terrible conflict that had just begun, to find out how to establish a permanent peace for Europe after Hitler had been defeated. That was the atmosphere in which Wheare began his work on federal government.
Wheare drafted, together with Goodhart, an outline of a European federal constitution for the Research Institute’s first conference — the draft on which Jennings based the constitution published in his book.[10] Wheare’s next step was to write a contribution to the series of Federal Tracts, entitled What Federal Government is,[11] which also became the title of Part 1 of Federal Government. His first paragraph in the Tract recognised that the British have no direct experience of federal government and therefore find it hard to understand what it is. He could equally have said that other peoples, for example the Italians, have no such direct experience. But in the post-war period there has been an important difference, in that more Italians than British have wanted to know because they have wanted to help build a European federation. The explanation of federal government that followed in Wheare’ s Tract was an outstandingly lucid exposition of the complex subject which was to occupy his subsequent classic volume. Since the latter is the subject of this Introduction, the main body of the Tract’s text need not detain us here. But the hint of passion in its conclusion evokes the atmosphere in which it was written, by a man who was normally the epitome of anglo-saxon pragmatism. These were his words: “It has usually been hard to establish a federal government... And when a federation has with difficulty come to exist, it is only with difficulty that it continues to exist ...Those who do propose such a federal government, however, may feel inclined to say to me at this point: The difficulties you have been talking about seem to us to be much less urgent and more remote. Our greatest difficulties come not from those who prefer a unitary government for Europe, but from those who do not believe that any form strictly so called, for Europe is possible or desirable. The real obstacle for us is the supporter of the sovereign, independent state and not the supporter of the unitary state. That is true. It is also true that they must expect, when they overcome the objections of those who believe in the sovereign, independent state, to meet thereafter the objections of those who, used to the simple certainties of unitary government, declare that they do not believe in federalism. It has seemed wise therefore to recall that federalism is a form of government which is not always appropriate or always easy to work. It is fair to recall at the same time that federal government is at least government: it is order, not anarchy; it is peace, not war.”
 
Federal Government.
 
Wheare wrote Federal Government while he was a Fellow at University College, with Beveridge as Master. There can be little doubt that Beveridge encouraged him in this study. It was sponsored by the Royal Institute of International Affairs; and the half-dozen people who read and advised on the text on behalf of that Institute included two, Goodhart and Wootton, who had like Wheare been active in the work of the Federal Union Research Institute. His involvement in that work certainly inspired the task that he was now to undertake. But Wheare was “devoid of ideological fervour”.[12] Federal Government was a work of scholarship, not advocacy. For that very reason, however, it is perfectly adapted to serve its purpose of analysing why people have wanted to establish federations, the conditions under which they have been created and maintained, their powers and institutions, and the problems that are likely to arise. The book is full of objective information and ideas on these matters; and the aim of this Introduction is to suggest ways in which it may be relevant to Europeans today, whether in the building of a federal European Union or in reforming the internal structures of unitary states such as Italy or the United Kingdom.
The book is based on study of the “classical” federations that functioned in practice with federal governments before World War Two: the United States of America, Switzerland, Canada and Australia. Wheare defined federal government as existing when “the powers of government for a community are divided substantially according to the principle that there is a single independent authority for the whole area in respect of some matters and that there are independent regional authorities for other matters, each set of authorities being co-ordinate with and not subordinate to the others within its own prescribed sphere”.[13] If the central government is subordinate to the member states, there is not federation but confederation, while if regional governments are subordinate to the central government, there is not federation but devolution.
While the idea that powers are divided in a federal system between regional and central governments that are co-ordinate with, not subordinate to, each other has been criticised,[14] this Introduction will argue that it is indeed a good working rule. We shall also bring to bear some comparisons with the Federal Republic of Germany, as the most relevant of the newer federations. Wheare, in the fourth edition of Federal Government, published in 1963, categorises the German Basic Law as quasi-federal, on the grounds that the powers of the centre are too extensive and the governments of the Länder have, through their representation in the Bundesrat, too great a role in the central institutions. But in the case of Canada Wheare argues that, while there are elements in the constitution which are not, by his definition, strictly federal, the practice of Canadian government is in fact federal; and the same reasoning can apply to the record of German government during what is now nearly half a century of the Federal Republic’s existence. The German experience is indeed highly relevant, both as that of a major European country and because the prefederal European Community has adopted certain elements of the German system. It is also a valuable example of the creation, even if under highly unusual circumstances, of a federal structure within a pre-existing state: a process to which Wheare did not devote his attention, since his four federations were all examples of the union of previously separate states — and, we may recall, the inspiration for his study originated from the time of his participation in the Federal Union Research Institute, with its focus on the uniting of Europe.
Many other states have been classified as federal or as incorporating important federal elements. Daniel Elazar, for example, using a somewhat wider definition than Wheare, finds that nearly two-fifths of the world’s population now lives within polities that are “formally federal,” while a further one-third lives within states that “utilise federal arrangements in some way”.[15] But this Introduction is about Wheare’s book; and his four federations, together with Germany, are the most important examples for our purpose here.
Although Wheare’s book is about completed federations, he lists among the conditions that facilitate union “some political association… prior to their federal union either in a loose confederation… or as parts of the same Empire”;[16] and Murray Forsyth, in his study of confederations, concludes that they are “usually stepping-stones to a federal state”.[17] We shall, therefore, also consider what can be learnt from Wheare about the federal elements that have, over the years, accrued to the institutions and powers of the European Community and Union.[18]
 
Motives and Conditions for Establishing Federal Systems.
 
The great motives for establishing and building up the European Community and Union have been the desire for security and prosperity: or, as Wheare puts it with respect to his four federations, hopes for economic advantage and fears of military insecurity and of dependence on foreign powers. To these we should now add fear of cross-frontier environmental pollution. Science and technology have, indeed, created such a degree of interdependence among states, particularly in Europe but increasingly also world-wide, that the single states can no longer separately provide the effective governance which their citizens require in a growing number of fields, with a consequent growth in the need for common government.
Wheare goes on to consider what factors, in addition to these facilitate the establishment of a union. Prior political association has already been mentioned. Geographical neighbourhood is another. Similar political institutions are a third, which, as Wheare points out, must be democratic if the participating states are to have the capacity to take part in a federal union. Wheare was also able to cite John Stuart Mill to the effect that a federation will not work properly if one member state is big enough to dominate the others, or indeed if two together can do so, for when they agree with each other the others must generally submit, while if they disagree there is deadlock.[19] Homogeneity of language, race, religion or nationality are not, Wheare found, necessary to establish a federation, but do, together with similarity of social institutions, help to produce the capacity to make the union a success. Thus Europeans face some obstacles that Americans and Australians were spared. But Switzerland has shown that Europeans can overcome them; and the same may be said of the European Community, which has incorporated a number of federal elements and has been able to function, albeit not sufficiently effectively, despite the diversity among the peoples of the member states.
Such diversity is, indeed, a reason for the choice of a federal form of union rather than a unitary state. Wheare lists divergence of economic interests and diversity of political or social institutions as factors underlying this choice. He also mentions geographical barriers, which have however been reduced by modern means of transport and communication, and differing “nationality” together with “a distinct history and a distinct government”[20] which, with the resurgence of nationalism and the post-war growth of “big government”, have certainly not become less important and are now the principal barriers to completion of the federal process in Europe.
Such factors also generate the desire to establish federal structures within previously unitary states. Perceptions of divergent economic interests among the regions or nations of the unitary state are significant in both Italy and Britain. Irish nationalism was the cause of a number of proposals for a federal United Kingdom made between the 1880s and the separation of the Irish Republic in 1921; and Scottish and Welsh nationalism stimulate similar proposals today. Proposals for a federal structure within Italy may be motivated by a history of cities and provinces as separate states with distinct cultures rather than by what would usually be called nationalism. Indeed many peoples share a desire, which need have nothing to do with nationalism or even regional egoism, to manage their own affairs as closely as possible to home; and a federal structure can be seen as the most effective means of ensuring this, against the natural tendency of central government to expand its powers, while at the same time maintaining the role of the central government for those matters that the component regions or nations cannot manage effectively by themselves.
 
The Division of Powers.
 
The constitutions of all the federal states contain lists that enumerate the fields in which the federal government has powers, divided into those where the federal power is exclusive and those where it is concurrent with the powers of what the Americans and Australians call the states; the Canadians call Provinces; the Germans, Länder; and the Swiss, Cantons. (In referring to these units collectively, where more than one of the federations is concerned, we shall call them, for convenience, the constituent states.) As Wheare points out, the concurrent list is potentially an exclusive list, because in each of the federations, as in the European Community, the federal law prevails over the laws of constituent states if there is conflict between them, so to the extent that the centre has legislated, the federal power becomes exclusive. Only in Canada is there an exclusive list for the Provinces, as a safeguard against federal encroachment.
The lists exclusive to the centre in all the federations include the control of foreign policy and the right to declare war. Thus the American states may not conclude treaties or agreements with foreign states. The Australian and Canadian federal governments have exclusive control over armed forces, although the Swiss cantons have some powers in this field, within a firm federal framework, and the states of the US retain their own militias (now called National Guards), which were formerly an important element in the American armed forces. The European Union differs radically from these federal states in having no more than intergovernmental co-operation for defence and defence-related foreign policy; and unless and until it has a more integrated system, it will not become a federal state.
The EU, or more precisely its central pillar, the European Community, does however have exclusive competence for external trade relations, as do Wheare’s four federal governments. For the EC this competence is limited to the area defined in Article 113 EC that has been deemed by the Court of Justice not to include the increasingly important field of trade in services, which will therefore not accrue to the Union without treaty amendment. But its exclusive competence over trade has made the Community, now the Union, into a great trading power, at least the equal of the United States in the world trading system. This, together with its concurrent power to provide aid in parallel with the member states, has enabled the Union to play the leading part in assisting the transformation of the Central European countries to market economy and pluralist democracy — although where military force is a factor, as in Bosnia, the Union is still ineffective in comparison with the United States. It does not require much imagination to foresee that the economic and monetary union will give the Union equivalent weight in the international monetary system.
Wheare points out that problems can arise from the federal power over external trade as a result of differing interests among the constituent states, typically in their emphasis on industrial or agricultural trade and their liberal or protectionist attitudes. Such divergence was a significant factor leading up to the American Civil War. Wheare wisely concludes that it is necessary, in a federal system, to take great care of the interests of minorities.
Only a few fields of internal economic affairs, though highly significant ones, are common to the exclusive lists of Wheare’s four federations: inter-state trade; currency, coinage and the raising of loans on the credit of the federal government; and immigration and emigration, which he rather oddly classifies as an economic matter. As it happens, the European Union does have competence for inter-state migration for economic purposes; it has at least as much competence over inter-state trade as does the United States; and it will likewise have, with the completion of the economic and monetary union, similar powers in the monetary field.
Wheare has an instructive story to tell about the establishment of the single market within the United States through the constitution’s “commerce clause” which gives Congress the power “to regulate commerce with foreign nations, and among the several states”. Not much was done, beyond the establishment of the customs union, in the first century after the federation was founded — as was the case of the EC until the Single European Act. But federal law then encroached increasingly on economic activity within the states on the grounds that the latter could influence inter-state trade. Since 1935, however, judgments of the Supreme Court have moved in the direction of limiting such encroachment, first by confining the grounds to direct, not indirect influences, then in 1942 ruling that federal intervention was permissible only where intrastate transactions have a “substantial” effect on inter-state trade. Given the acceleration of history, it is not surprising that relevant EC legislation is already carefully scrutinised to ensure that it conforms to the principle of subsidiarity.
With the derogations, which provide for later adoption of the single currency by those member states that do not at first meet the stipulated criteria, and the opt-outs which allow Britain and Denmark to choose later whether to adopt it or not, the road to full economic and monetary union is not a smooth one. But it remains probable that all member states will participate fully without too much delay; and when they do, the Union will have the major economic powers that are common to Wheare’ s four federations. Those federations also give the central government concurrent, and in some cases exclusive, powers with respect to a number of fields of microeconomic policy, including agricultural, industrial, research, transport and communications, as well as policy regarding employment and labour conditions. States such as Italy or the United Kingdom, if they adopt federal structures, will doubtless also retain such powers at the centre, while their constituent regions or nations too would have concurrent powers. There is a similar sharing of powers between the European Union and its member states. But policy in most of these fields depends as much if not more on public expenditure as on legislation; and whereas in the federal states the central governments have become financially far more powerful than the member states, in the European Union the reverse is the case.
The same is true of social services such as education, health, social insurance, pensions and sickness and unemployment assistance. The federal constitutions evidently intended such policies to rest mainly with the constituent states. But the powers of the central governments in Wheare’s four federations have increased over time through a combination of constitutional amendment, judicial decisions and grants from the federal budgets to the states. In Germany, a series of constitutional amendments have tilted the balance towards the centre; and Article 91a of the Basic Law, enabling the federal government to intervene in order to “improve living conditions”, points clearly in that direction. If Italy or the UK should embark on the drafting of a federal constitution, they would have to decide whether to incline towards the German example or that of the more decentralist Canadians and Swiss. But the principal device whereby the federal power has been augmented in Wheare’s federations is financial: the constituent states have become dependent on federal grants. The division of powers in the field of public finance then, a crucial determinant of the ability of the states to remain really autonomous in their main fields of competence.
The federal principle requires both the federal government and the constituent states to have, each under its independent control, sufficient financial resources to carry out the responsibilities attributed to them by the constitution. Otherwise the system is in practice a confederation or a unitary state. But the rise of welfare politics and the occurrence of wars have increased the taxing power of the centre and jeopardised the independence of the member states. Various devices have therefore been adopted to prevent arbitrary constriction of the tax money available to the states. Australia has an independent Grants Commission, which advises at intervals on the share of budgetary resources to be allocated to the states, and whose advice had always been accepted. Thus although a unitary element in the constitution allows federal tax laws to override those of the states, the practice has been federal; and broadly the same has applied in Canada. The power of the US federal government to tax was severely restricted for well over a century by the form of the constitutional provision for it. But the sixteenth constitutional amendment in 1913 relaxed that restriction and the World Wars provided a precedent for vastly increased federal expenditure and taxation. In Germany there is, at intervals, a carefully negotiated division of tax receipts between the federal government and the Länder to take account of changes in the cost of their respective responsibilities, which has to be approved by the Bundesrat, comprising representatives of the Länder governments, as well as by the citizens’ representatives in the Bundestag. In Switzerland, a change in the fiscal rights of the cantons and the federal government requires amendment of the constitution; and in the European Union the still very modest share of the centre can be increased only through a process involving unanimous ratification by the member states, similar to the rigid procedure for treaty amendment.
In all these federations, then, despite the financial power of the federal governments and the tendency towards the accretion of their legislative competence, the constituent states retain a real basis of power in social matters, such as education and health, and in microeconomic policies, particularly those pertaining to regional development. The enormous financial resources of the US federal government have been at least partly offset by the Supreme Court’s interpretations of the constitution, in particular of two amendments that responded, soon after it entered into force, to demands similar to those that led the European Union to adopt the principle of subsidiarity: the tenth amendment, which provides that “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 the people”; and the fifth amendment which requires that “no person shall be deprived of life, liberty or property, without due process of law”. While the fifth amendment applied the due process clause only to the actions of the federal government, the fourteenth, passed soon after the civil war with the experience of slavery in the southern states in mind, extended its application to actions of the authorities within the states. These constitutional amendments acted as a brake on encroachments by the federal government. In Canada the allocation of education and health as exclusive provincial powers certainly offsets the unitary right of the federal government to veto provincial legislation. In Switzerland a profoundly federal political culture has defended the rights of the cantons. In Germany, despite the more homogeneous political culture, the powers of the Länder remain entrenched in fields such as education; and the presence of their governments in the Bundesrat helps them to defend their autonomy. Even the more unitary delegation of the execution of federal laws and policies to the Länder enlarges their political capacity, which the constitution guarantees them in other fields of policy.
An adequate role in the central institutions for representatives of the constituent states is, according to one view, a more significant criterion of a federal system than an adequate allocation of powers.[21] It certainly acts as a defence against diminution of the powers of the states. But without a solid foundation of autonomous powers which can be reduced only by a process of constitutional amendment in which the states play a major part, their representatives will lack a substantial political base and their citizens will be over-exposed to the risk of government becoming increasingly remote.
While the question in these federations is whether their constituent states retain enough autonomy, for the European Union we have to ask whether the Union itself has the autonomy to perform the functions that its member states independently can no longer undertake effectively.
Interdependence has drastically diminished the capacity of the member states for adequate independent action in the fields of internal and external trade, currency, cross-border environmental pollution, external security and some aspects of internal security. The Union has, as we have seen, been given sufficient powers to deal with internal and external trade and, when economic and monetary union is complete, with currency; and it has considerable powers with respect to cross-border pollution. The Court of Justice has also established that the actions of the Community must respect fundamental rights and the Maastricht Treaty has confirmed this. The Union has a modest but significant budget, financed tax resources to which it is legally entitled. So it can be said, apart from the modest size of its budget, that the Union has economic and environmental powers broadly equivalent to those of the federations; and while its powers in the fields of social policy are less than theirs, that may be regarded as appropriate since among the federations, at least Australia, Germany and the United States have a much more homogeneous political culture. As regards external security, most of the member states have been content to remain dependent on the United States mainly for objective reasons. But subjectively, they have remained unwilling to move towards reducing that dependence, owing to their reluctance to begin mutual integration of their defence capacities in what they see as the citadel of national sovereignty.
The economic and environmental powers of the Union nevertheless give it a very considerable field of political activity, at least as important as that which remains to the constituent states of the federations in social and microeconomic policy. Thus it can hardly be said that the Union has insufficient powers to sustain its autonomous role in a federal system. Without the power to control armed force, the Union cannot be called a federal state. But given a preponderance of federal elements in its institutions, it could legitimately be called a federal union. We must see, then, what Wheare has to tell us about federal institutions.
 
Federal Institutions.
 
In accordance with the federal principle, neither the central government nor those of the constituent states should control the other. It follows that the federal government must not depend too heavily on the governments of the states to carry out its decisions, but must have direct relations with the citizens. Both the federal institutions and those of the member states must be guaranteed by the constitution. Both must be democratic, based on the rule of law and representative government (or, in the exceptional Swiss case, in part on direct democracy), or they will be unable to be bound by the law of the constitution, to accept the division of powers, or to be legitimate in the eyes of the citizens of the federation who will be subject to laws for which their vote may have determined the outcome.
As the federation is based on the law of the constitution, it is logical that this should be interpreted by lawyers in a supreme court. Except in Switzerland, where challenges to the legality of acts of the federal government may be decided by referendum, such a court both interprets the constitution and reviews legislation to ensure that it is constitutionally legitimate; and if federal laws are legitimate, they prevail over the laws of the states. There is a dual system of courts in Australia, Germany and the United States, both federal and constituent state. But in Switzerland cantonal courts are responsible for applying federal as well as cantonal law, although there is also a Federal Tribunal as a court of appeal and a court of original jurisdiction for some federal matters; and the European Union’s system is somewhat similar, though the Court of Justice interprets Community law for the member states’ courts rather than acting as a court of appeal against their judgments. For enforcement of the law, Canada and the United States have parallel systems of federal and state police and prisons, whereas the Australian and Swiss constitutions provide only for state prisons and police.
While it is the function of the judiciary to guarantee the rule of law, the principle of representative government is embodied in the legislature and the executive; and the federal legislature comprises a people’s house and a states’ house, reflecting the special character of the federal union which binds not only the citizens but also the constituent states.
The smaller states, like the larger, have two representatives each in the US Senate, as a counterweight to the greater representation of the larger ones in the people’s house; and the same is true for the Swiss cantons, except for the six tiny half-cantons, which have one representative each. In Australia, Canada, Germany and the European Union, the representation in the states’ house is weighted in favour of the larger, while still giving the smaller a proportion of the votes well in excess of their proportion of the population. The representatives are directly elected by the citizens in each of Wheare’s four federations; and a principal reason why he does not regard Germany’s Basic Law as properly federal is that the representatives in the Bundesrat are appointed by the governments of the Länder, “subject to instruction, recall and replacement by those governments”, so that the federal legislature is “to some degree dependent on them”.[22] But a crucial distinction between that and a confederal system is that the Bundesrat votes by majority: there is no veto for any one of the Länder. The powers of the Bundesrat are moreover less than those of the people’s house, the Bundestag, which among other things appoints and can dismiss the government. While the Bundesrat does give the Länder a status in the federal system that helps to offset the preponderance of exclusive and concurrent powers allocated to the federal government, to which Wheare also refers, experience shows that the Länder do not thereby dominate the central institutions.
Wheare admits that until the Constitution was amended in 1913, the US Senators were appointed by the states’ legislatures, and this was, his definition, a non-federal element in the US Constitution. But there can be no doubt that the United States was effectively a federation, with sufficiently independent governments for both the centre and the states. Indeed, the powers of the Senate, with its right to approve treaties (by a two-thirds majority) and presidential appointments, to propose, amend or reject legislation and to impeach the President, give the states’ representatives a more dominant role than that of the representatives of the Länder. While this is not the same as giving such a role to the governments of the constituent states, there is a powerful logic in giving them a substantial place in a federal legislature that will enact laws in fields where they either have concurrent competence or will be responsible for administering the federal legislation. The same logic may be applied to the European Union, where the Council, like the Bundesrat, contains representatives of the governments of the member states. But contrary to the German example, the Council dominates both the executive (European Commission) and the people’s house (European Parliament) and retains the veto for each member state for some important decisions in the Union’s central, Community pillar and for virtually all decisions in the other two “pillars” that are supposed to deal with external and internal security.
In the federations the seats in the people’s house are distributed in proportion to population, whereas in the European Parliament there is, as in the Council, an element of weighting in favour of the representation from the smaller states. The directly elected European Parliament is otherwise similar to the people’s houses of the federations, with the crucial exception of its deficiency of powers in relation to the house of the states. The European Parliament’s powers have been substantially increased through successive treaty amendments. For the budget, it is at least the equal of the Council, though with the important exceptions of the agricultural expenditure and the power over tax. For legislation, it has the right of codecision with the Council, which has applied to over a quarter of the Community’s legislation since the Maastricht Treaty entered into force, and an influential, though not decisive, role for most other legislation. For acts of accession, treaties, many international agreements and some other matters its assent is required. And, since Maastricht, it has the power to approve, or not, the appointment of each new Commission. These powers are certainly significant, but they still fall far short of those of the people’s houses in the federations. Wheare also emphasised the importance of a good system of political parties if the federal legislature is to be effective. Like many anglosaxons, he believed the two-party system, which applied in Canada and the United States, was best. But multi-party systems function well enough in Australia, Germany and Switzerland, as in most European unitary states. The general European pattern is reflected in the European Parliament, three-quarters of whose members, since the 1994 elections, have belonged to the three main party groups. But the party system, like the Parliament, is still in the process of evolution and may not achieve maturity until the Parliament has full federal powers.
Control over the enactment of legislation by the citizens’ elected representatives is one main principle of representative government. Control over the executive is the other, which can be exercised either by entrusting that control to those representatives or by giving the executive power to a representative elected for that purpose by the citizens. The former system, of a parliamentary executive, is normal in Europe and applies in the Australian, Canadian and German federal systems, where the federal government is appointed and can be dismissed by the federal legislature, with the proviso in Germany that the decision to dismiss must be accompanied by the appointment of the succeeding government. In Switzerland there is a yet stronger safeguard against governmental instability, in that the Federal Council, as the executive is called, remains in office for the four-year term of the legislature, following its appointment by a joint session of both houses. This amounts to a partial separation of powers, and leads us to the fuller separation in the presidential system of the United States.
The intention of the American Founding Fathers was to entrench the separation of powers at the centre in order to guard against the danger of too-strong government. While the role of the President has been greatly enhanced during the course of two centuries and two World Wars, the ability of both President and Congress to frustrate each other’s actions is still a source of weakness in the system, and hence of comfort for those who oppose the idea of big government. While the separation between the judiciary on the one hand and the legislature and executive on the other, once the judges have been appointed by some combination of these two, is common ground between Americans and Europeans, the European system of a parliamentary executive does not seek to weaken central government by separating the appointment of legislature and executive.
A parliamentary executive may be weak because it is dominated by the parliament, as has been the case with most of the post-war Italian governments. Or the parliament may be weak because it is dominated by the government through its control of a majority party, as in Britain. But a constitution can be designed, as in Germany or Switzerland, to secure a balance between legislature and executive in order to avoid both the deadlock to which the American system is prone and the dominance of either legislature or executive which can result from the European system.
The President of the European Commission is nominated “by common accord” of the governments of the member states and the governments also nominate the Commission’s other members, in practice each government nominating the representative, or for the larger member states the two representatives, from its own country. The Commission thus nominated is “subject as a body to a vote of approval by the European Parliament” (Art. 158 EC). The Parliament was given its right of approval by the Maastricht Treaty, before which the procedure had been totally in the hands of the governments, and hence a fully confederal element in the institutions. The Parliament now has the chance to exercise its power over the appointment so as to make the procedure more federal. The Commission also has to regard itself as accountable to the Parliament as well as to the Council because, among other things, of the Parliament’s role with respect to legislation and the budget, which the Commission has to propose and execute, and the Parliament’s ultimate power to dismiss the Commission — although the requirement of a two-thirds majority of the votes representing a majority of its members makes this sanction hard to apply. But the executive, like the legislature, remains dominated by the Council; and the Union will not have democratic federal institutions until the parliament can make its right to approve the appointment of the Commission fully effective, and until it attains full legislative codecision with the Council so that all laws must be approved by the house of the people as well as the house of the states.
While the main problem facing the European Union is the dominance of its institutions by the governments of the member states, the question for Wheare’s federal states is, rather, whether the governments of the constituent states are sufficiently independent of the federal government. There is some diversity among their institutions. Thus all the American state legislatures have two houses save Nebraska, which has only a senate, while all the legislatures of the German Länder have only one house, except for Bavaria, which has two. But in each federation the institutions of the constituent states are guaranteed by the constitution, except that the federal government has the right to intervene if they cease to respect fundamental rights. While the Court of Justice has a duty to guarantee that the institutions of the Community, though not the other two “pillars” of the Union, respect such rights, the Treaty does not provide for intervention in a member state that fails to do so. The United States constitution was amended to provide for that in order to ensure that such denials of rights as slavery would no longer be possible. The motive for the European Union would be rather different. It cannot be acceptable for democratic member states which respect the principles of rule of law and representative government that any of their partners should not respect those principles, thus failing to apply the Union’s laws and perhaps placing representatives of undemocratic governments in the Council where they might cast the deciding vote. The Treaty must surely be amended, before the accession of a substantial number of countries whose democracies are insufficiently mature, to allow for measures of either intervention or suspension with respect to member states whose democratic standards may fall short of what is acceptable. Such considerations lead us to the question of the replacement of the Treaty by a constitution.
 
Constitution.
 
A democratic constitution differs from a treaty in being, whether implicitly or, preferably, explicitly, a contract among citizens, as well as, in federations, among states. Without such a constitution the structures of union or devolution will remain precarious. Nothing in politics can be absolutely certain; but a federal constitution enhances the prospect that two or more levels of government will coexist independently within a single polity. The European Union is based on an inter-state treaty, drafted in a form and in language that is incomprehensible to the citizens whose support for its institutions and activities is required, and with insufficiently effective and democratic institutions. Sooner or later, preferably sooner, and before the process of enlargement proceeds much farther, the treaty will have to be replaced by a constitution or the Union will remain unsound and liable to disintegrate. Wheare’ s book helps us, in considering the implications of this, to answer the questions that arise. What should be the content of such a constitution? Who makes the constitution? Who interprets it? How is it amended to take account of past experience and new developments? Can it really ensure that the governments of the centre and the states are co-ordinate and not subordinate?
The substance of Wheare’s book, and hence of this Introduction which reflects it, concerns mainly the content of the constitution and its relationship with the practice of federal government.
The first federal constitution, as is well known and as Wheare records, was drafted in Philadelphia by representatives of the participating states and ratified by Assemblies elected for the purpose, though initially not accepted by all of them. Now that, in the European Union, the dual character of a federal system as a contract between citizens as well as states is represented by the existence of a house of the people and well as by the member states, it is logical to envisage that a constitution should be drafted by a process of codecision between the European Parliament and representatives of the member states, and of their legislatures in particular. It should be adopted by the Parliament, approved by referendum and ratified by the member states. While it is highly desirable that all the member states should ratify, it may be necessary to proceed in the first instance without some of them, while remaining open, as did the USA, to their future accession. The proposal of the Draft Treaty of European Union, inspired by Spinelli and approved by the European Parliament in 1984, was that when one-half of the member states containing at least two-thirds of the Community’s population had ratified, their governments should meet “to decide by common accord on the procedures by and the date on which this Treaty shall enter into force”.[23] Whatever the detailed arrangement, a federal union is not likely to be established if those member states that wish to adopt the federal constitution accept a veto from those that do not.
Interpretation of the constitution is, as we have seen, normally entrusted to a supreme court. But if the politicians do not like what the judges decide, they can seek to amend the constitution on which the judgment was based. The procedure for amendment is, indeed, a vital element in a federal constitution, because it, like the constitution itself, must place neither the federation nor the states in a subordinate relationship one to the other. The procedure in the United States is that an amendment must be proposed by either a majority of two-thirds in each house of Congress, or a convention called by Congress, or on application by the legislatures of two-thirds of the states; and in order to be enacted, the amendment must then be ratified by either the legislatures of three quarters of the states or conventions in three-quarters of the states, whichever of the two methods the Congress shall choose.
While such a procedure, like that of other federations, gives the states a full part in the process of amendment, it does not allow a single state, or a small minority of states, to impede it. This, Preston King has argued, gives the constituent states a subordinate position within the federation.[24] While the logic of this argument is open to question since the states can likewise overrule the central institutions in the amending process, it undoubtedly has political force. If a single state or a minority of states is seriously opposed to the constitution, or to an amendment that is enacted by a sufficient majority, the result can be either violent conflict, as in the American Civil War, or a non-violent secession, such as will doubtless occur if a majority vote for it in a referendum in Quebec. King suggests that the individual state is in a dependent position unless the constitution gives it the right to secede, which is not normally allowed by federal constitutions; and though that of the Soviet Union made formal provision for it, there was no question that it would be permitted so long as the Communist Party remained in power. But in modern democratic federations the opposite is the case. Who would suppose that the other Canadians would go to war against a secessionist Quebec? Secession may not be formally allowed by the constitution, or indeed by the Treaty of the European Union, but this does not mean that secession would be an act of war. The seceding state would therefore be liable to painful sanctions on the part of the federation, which could be justified in regarding the illegal act as damaging its interests. The other constituent or member states would, however, be entitled to regard it as an illegal action unless it had been accepted by the due process of constitutional or treaty amendment. Just as Wheare was right to regard Canada as a federation in practice even though there are significant unitary elements in its constitution, so the constituent states can be regarded as autonomous in practice within their own fields of competence, even if the constitution does not formally provide for secession. So it is legitimate to say that the central and state authorities are, as Wheare affirmed, co-ordinate with each other. Wheare held, moreover, that secession was not inconsistent with the federal principle as a matter of logic, but that the right to secede would open the federal government to blackmail individual states and thus weaken it.[25] It may be wise not to provide for it in a European constitution; and it should be understood that illegal secession could be punished by appropriately severe sanctions. But it would also be wise not, except in extreme circumstances, to regard it as a casus belli.
Wheare often encountered the criticism, common among the British, that federal government is legalistic and conservative. While accepting that this was so, his reply was that this was the price to pay for the advantages of a federal system, and that change could moreover be effected through the development of usage, judicial decision and constitutional amendment. None of his federations made the latter so difficult as does the European Union, with its requirement of unanimity for treaty amendment. Yet it is remarkable how far the Community has nevertheless progressed towards a federal system, with the establishment of the European Coal and Steel Community followed by the Treaties of Rome, then the amending treaties giving the European Parliament its budgetary powers, the decision for direct elections to the Parliament, and the Single European Act and Maastricht Treaty, all of them requiring unanimous agreement.
As the Union approaches the core of sovereignty, however, and as the number of member states grows, this procedure for amendment becomes more and more impracticable. The major reforms still required to make the Community institutions federal involve a relative reduction in the power of the Council, and hence of the governments of the member states: generalisation of voting by qualified majority and of legislative codecision with the Parliament, and a shift of responsibility of the Commission to the Parliament. Given completion of the economic and monetary union, there would then be federal institutions with federal powers in the economic and environmental fields: a federal union, though not yet a federal state.
The number of essential reforms is modest, but the prospect that the governments of all the member states will accept such a sharing of sovereignty may appear modest too. Hence the proposals for a federal nucleus of states to move ahead, in the expectation that the others will follow when they see the enterprise succeeds, as they have done with the enlargement from six to the fifteen member states of the Union today, with a dozen further applicants.
European federalists expect that the logic of their proposals will sooner or later prevail, as it becomes more and more evident that the European Union in its present form is too ineffective and undemocratic to deal with the challenges that confront Europeans now, and will increasingly confront them in the future. Many federalists also believe that federal structures will be found increasingly necessary within existing unitary states. Wheare’ s Federal Government helps us to think about these propositions and to know how to deal with the relevant problems. Despite his scholarly objectivity, Wheare also conveys an inspiriting message for federalists. Federal government is designed, he writes in the final paragraph of his book, to make “the combination of unity and diversity, independence and interdependence, safe and workable” and is thus the way to achieve “a high and necessary ideal in the sphere of government”. It is, one may add, echoing the words of his Federal Tract, order not anarchy, prosperity not poverty, peace not war.
 


* This text is a reprint of the “Introduction” to the new Italian edition of C.K. Wheare’s Federal Government, which will be published in the “Collana Federalista” (publisher, Il Mulino, Bologna).
[1] His books included The Statute of Westminster (1931, 1933), The Statute of Westminster and Dominion Status (1938, 5th edn 1953), Federal Government (1946, 4th edn 1963), Abraham Lincoln and the United States (1948), Modern Constitutions (1951), Government by Committee (1955), The Constitutional Structure of the Commonwealth (1960), Legislatures (1963).
[2] For more information on Beveridge and these four, see John Pinder, “Pre-war Ideas of European Union – The British Prophets”, in Martyn Bond, Julie Smith and William Wallace (eds), Eminent Europeans: Personalities Who Shaped Contemporary Europe, London, The Greycoat Press, 1996.
[3] See Altiero Spinelli, Come ho tentato di diventare saggio: Io, Ulisse, Bologna, Il Mulino, 1984, pp. 307-8; see also A. Spinelli, “The Growth of the European Movement since World War Two”, in C. Grove Haines (ed.), European Integration, Baltimore, John Hopkins Press, 1957, pp. 38-42; Sonia Schmidt, “Intervista con Altiero Spinelli”, in Altiero Spinelli e Ernesto Rossi, Il Manifesto di Ventotene, Napoli, Guida, 1982, pp. 171-4; Altiero Spinelli, L’Europa non cade dal cielo, Bologna, Il Mulino, 1960, p. 15. A full bibliography of the literature produced by the Federal Union movement and the federalists associated with it is given in Richard Mayne and John Pinder, with John Roberts, Federal Union: The Pioneers – A History of Federal Union, Basingstoke, Macmillan, 1990, pp. 250-63. Extracts from and studies of this literature in Italian are to be found in Mario Albertini, ll federalismo. Antologia e definizione, Milan, Giuffré, 1963 and ll federalismo, Bologna, Il Mulino, 1979; Mario Albertini, Andrea Chiti-Batelli, Giuseppe Petrilli, Edmondo Paolini, Storia del federalismo europeo, Turin, Edizioni RAI, 1971, pp. 21, 38-40, 134-5, 138-42; Andrea Chiti-Batelli, L’unione politica europea, Rome, Senato della Repubblica, 1978, pp. 30-7, 72-5; Lucio Levi, Federalismo e integrazione europea, Palermo, Palumbo, 1978, pp. 39-46; Edmondo Paolini, L’idea di Europa, Florence, La Nuova Italia, 1979, pp. 46-50; Sergio Pistone (ed.), Politica di potenza e imperialismo, Milan, Franco Angeli, 1973; Francesco Rossolillo, “La scuola federalista inglese”, in Sergio Pistone (ed.), L’idea dell’unificazione europea dalla prima alla seconda guerra mondiale, Turin, Fondazione Luigi Einaudi, 1975.
[4] Ivor Jennings, A Federation for Western Europe, Cambridge, Cambridge University Press, 1940, p. viii.
[5] The citations are to be found in Altiero Spinelli, “Gli Stati Uniti d’Europa e le varie tendenze politiche”, in A. Spinelli e E. Rossi, op. cit., pp. 66,70; and A. Spinelli, “Politica marxista e politica federalista”, ibidem, p. 103. The two books by Lionel Robbins were Economic Planning and International Order, London, Macmillan, 1937 and The Economic Causes of War, London, Jonathan Cape, 1939.
[6] Barbara Wootton, Socialism and Federation, Federal Tracts n. 6, London, Macmillan, 1941, reprinted in Patrick Ransome (ed.), Studies in Federal Planning, London, Macmillan, 1943, reprinted London, Lothian Foundation Press, Londra, 1990.
[7] Friedrich A. Hayek, “The Economic Conditions of Inter-State Federalism”, in Commonwealth Quarterly, September 1939, reprinted in F.A. Hayek, Individualism and Economic Order, London, Routledge & Kegan Paul, 1949. The citations by Spinelli are in “Gli Stati Uniti d’Europa”, op. cit., p. 83 and in “Politica marxista e politica federalista”, op. cit., p. 112.
[8] A.L. Goodhart, “The Constitution of the United States”, in P. Ransome, op. cit.
[9] Lionel Curtis was also the author of a massive study of the historical development towards federal government: Civitas Dei, London, Allen & Unwin, 3 vols., 1934-37.
[10] The draft constitution by Goodhart and Wheare, together with a record of the discussion on it, is presented in the “Report on Conferences on the Constitutional Aspects of Federal Union”, in the Federal Union Research Institute’s First Annual Report 1939-1940, London, FURl, 1940.
[11] Kenneth C. Wheare, What Federal Government is, Federal Tracts n. 4, London, Macmillan, 1941, reprinted in P. Ransome, op. cit.
[12] Max Beloff, “Sir Kenneth Clinton Wheare”, in The Dictionary of National Biography 1971-1981, Oxford, Oxford University Press, 1986, p. 896.
[13] K.C. Wheare, Federal Government, p. 35 (The page numbers in this and subsequent notes refer to the 2nd edition, 1951, except for n. 22 which refers to the 4th edition, 1963).
[14] See for example Preston King, Federalism and Federation, London, Croom Helm, 1982.
[15] Daniel J. Elazar, “Introduction”, in D.J. Elazar (ed.), Federal Systems of the World, Harlow, Longman, 1991, p. xv.
[16] K.C. Wheare, Federal Government, p. 37.
[17] Murray Forsyth, Unions of States: The Theory and Practice of Confederation, Leicester, Leicester University Press, 1981, p. 208.
[18] For further consideration of this question, see John Pinder, European Community: The Building of a Union, Oxford, Oxford University Press, 1991 (2nd edn 1996); “The New European Federalism: The Idea and the Achievements”, in Michael Burgess e Alain G. Gagnon (eds), Comparative Federalism and Federation: Competing Traditions and Future Directions, Hemel Hempstead, Harvester Wheatsheaf, 1993; and “Building the Union: Policy, Reform, Constitution”, in Andrew Duff, John Pinder and Roy Pryce (eds), Maastricht and Beyond: Building the European Union, London, Routledge, 1994.
[19] K.C. Wheare, Federal Government, pp. 52-3, citing John Stuart Mill, “Of Federal Representative Governments”, in his essay Considerations on Representative Government (1861), reprinted in Utilitarianism, Liberty and Representative Government, London, J.M. Dent, 1910, pp. 367-8.
[20] K.C. Wheare, ibidem, pp. 40-41.
[21] Preston King, op. cit., p. 137.
[22] K.C. Wheare, Federal Government (4th edn., 1963), p. 26.
[23] Draft Treaty Establishing the European Union (European Parliament, February 1984), Article 82.
[24] Preston King, op. cit., pp. 113-16.
[25] K.C. Wheare, Federal Government, p. 91.

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