1 Confederations and Federations
1.1 Contemporary Definitions for Confederations and Federations
Figure 1 Traditional confederation
The traditional definition of a confederation is a body whose laws are binding only on sovereigns. This means that confederate legislation has to be transformed into internal legislation in each member state in order to be binding on that state's citizens and court system.
As the preceding figure shows, the paths of control in a confederation are top-down, but if a state fails to carry out confederate instructions, the confederation may take action only against state authorities. However, as happened during the Gulf war of 1991, it is common for state authorities to protect themselves behind a wall of ordinary people. (The United Nations is in fact a confederation, and the Iraqi authorities were probably legally bound to obey U.N. resolutions. However, legal technicalities turned out to be of minor importance as the Iraqi leaders hid and continues to hide behind a shield of innocent civilians and army personnel.) This makes the people rather than the responsible state leader suffer the consequences of illegitimate state action. As central decisions do not extend directly to individuals, traditional confederations are inherently unstable. Either they fall apart, with confederate instructions becoming no more than polite advice, or they evolve into federations.
Contrary to traditional confederate legislation, federal legislation may extend rights and obligations directly on individuals in each member state. See figure below. Obviously it is much easier to coerce individuals than it is to coerce state authorities that have the full powers of the state at their disposal for protection. Thus the central powers tend to be much more important within a federation than within a confederation.
Figure 2 Traditional federation
If state and federal laws conflict, as they invariably do eventually, it is the central body's laws and legal system that prevails. Central law is superior law, and the paths of control are top-down.
Since federal law prevails with respect to each individual, there is little or no need for the central government to directly instruct state law making bodies.
Contemporary Federations and Confederations
By the traditional definitions all those governmental structures that we normally consider federations, the United States of America, Canada, Australia, Germany and Switzerland end up in the "correct" category. Perhaps surprisingly, the European Community ends up being a federation as well.
There are essentially three forms of Community law: a) Regulations; which automatically become law for everyone living in Community countries, b) Decisions; which automatically become law for particular bodies or persons, and c) Directives; which order member states to make laws of their own so as to give effect to community policies (Letwin, page 14). It follows that only through the exclusive use of Directives can the Community be classified a confederation. Whenever the Community issues Regulations or Decisions, it acts as a federation and not a confederation. The essential federal nature of the Community is independent of the fact that the scope of the Community's powers as they exist today, is limited. The Community has the power to legislate only on certain economic issues, agriculture etc.. But within the Community's limited domain, within that range where it can issue Regulations or Decisions, by the traditional definition, it acts as a federation.
The New Confederation
This book's definition of a confederation differs somewhat from the traditional definition. A federation is defined as a multigovernmental entity where central law is superior law, while a confederation is a multi-governmental entity where local law (state law) is superior law. This new definition allows confederations to act directly on individual citizens, and thus provide the level of cohesion now offered only by federations and it thus gives the term confederation a more meaningful content.
Important features of New Confederate definition
The new definition preserves the fuzzy popular notion that confederations are "looser" structures than federations; more based on co-operation than coercion.
From the local-law-is-superior principle it follows that interaction within a confederation has to rely on voluntary co-operation between the member states, while a federation ultimately relies on coercion.
From the individual citizen's point of view, the traditional and the new definition of a confederation are related. If confederate law can act only on sovereigns and has to be transformed into local law to act on individuals, then from the individual citizen's point of view, state law is superior law.
We also may add that the proposed definition is consistent with the previous analysis as to the federal nature of present governmental organizations. The United States of America, Canada, Australia, Germany and Switzerland continue being the federations they are generally acknowledged to be. The Community, too, ends up as a federation rather than a confederation.
It is the force to coerce and compel, rather than propose and persuade that is the distinguishing characteristic between a federation and a confederation. A confederation relies on bottom-up paths of control while a federation relies on top-down paths of control.
Table I Summary comparison of traditional and reformed confederations
1.2 Three Foundations of the New Confederation
The proposed constitution is built on a confederate structure where state law is superior law, and the individual states retain their sovereignty and independence, including the right to secede.
This structure encourages competition between governmental units and ensures that government continues to obey the wishes of the citizens.
The central government's task is to take care of the common good as defined by the citizens in their collective capacities, ease cooperation, provide the states and the citizens with alternate solutions to their concerns, and provide cohesion and guidance. But if the people of one of the member states reject confederate legislative proposals, it has no power to compel enforcement. Its coercive powers are limited to those powers needed to ensure that individuals in their collective, group or individual capacities, have an opportunity to choose.
The proposed constitution has three fundamental foundations:
The first foundation is compound. Devolved popular sovereignty requires an analysis both of devolution, sovereignty and "popular". The second foundation is at least partially dependent on the first, as competition can take place only if there are multiple independent decision makers, which is easiest made possible by devolving some power away from the center. Thirdly decisions based on devolved popular sovereignty and competitive procedures are also just processes for arriving at decisions and they ensure that governmental actions conform to the interests of ordinary people.
Of course, in the actual text of the proposed constitution several of these fundamental ideas may influence the phrasing of any one particular section.
1.3 Two Parts of Constitution
The Constitution itself is divided into two parts;
The purpose of this division is to allow the confederate government to organize itself as it pleases and in a way that proves convenient, but prevent these institutional changes within the central government from encroaching on the sovereignty of the states. For similar reasons there are no references in the first part to institutions in the second part, neither are there references the other way, except that certain actions by the confederate government naturally presuppose a legal basis in Chapter 3.
Chapters 1 through 4 of the Constitution are also superior to Chapters 5 through 10.
The proposed constitutional model is built on three fundamental ideas:
The new Confederation has extensive powers to persuade and provide alternate answers, but very limited powers to coerce. Contrary to present federations and confederations the structure is voluntary.
Copyright © 1991-2003 John F. Knutsen
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