Chapter 1 - The
Senate and its constitutional role
Rationale
of federalism
Federalism
has been practised since ancient times, in the sense that small states have
united by their governments appointing a central governing body and agreeing to
carry out its decisions. Modern federalism, however, is quite different from
those kinds of arrangements. It involves the people of the constituent states
electing a national legislature, which has the power to make laws directly
affecting the people of the states on defined subjects. This distinctive
system, federalism as we now know it, was invented in 1787 by the framers of
the Constitution of the United States. As it has been so widely copied elsewhere since that
time, its distinctive features are often overlooked.
Apart from providing a way of persuading separate self-governing states
to unite on the basis of retaining their separate identities, federalism has
positive virtues, and the recognition of these virtues has contributed to its
spread around the world.
The division of powers between regional and
national governments has been seen as an additional safeguard of the rights of
the people and against governments misusing their powers. If a bad government
possesses all powers, all powers may be abused, but a national or regional
government can use its powers, and the people can use their separate votes in
electing those governments, to correct, to some extent, any misuse of the
powers of either one.
This concept of federalism as first and foremost a safeguard was put by
the framers of the United States Constitution:
[In a federation] the power surrendered
by the people is first divided between two distinct governments, and then the
portion allotted to each subdivided among distinct and separate departments.
Hence a double security arises to the rights of the people. The different
governments will control each other, at the same time that each will be
controlled by itself. (The Federalist, No. 51, pp 265-6)
Federalism, while allowing the union of nations occupying large
territories, avoids the domination of government by any single group or interest.
Again, the American founders put this point very cogently:
The smaller the society, the fewer
probably will be the distinct parties and interests composing it; the fewer the
distinct parties and interests, the more frequently will a majority be found of
the same party; and the smaller the number of individuals composing a majority,
and the smaller the compass within which they are placed, the more easily will
they concert and execute their plans of oppression. Extend the sphere, and you
take in a greater variety of parties and interests; you make it less probable
that a majority of the whole will have a common motive to invade the rights of
other citizens; or if such a common motive exists, it will be more difficult
for all who feel it to discover their own strength, and to act in unison with
each other. (The Federalist, No. 10, p. 47)
Other advantages are attributed to federalism: the adaption of local
policies to local circumstances; the ability of states to conduct experiments
and innovations in policy without involving the whole country; a healthy
competition between states for the best policies; more opportunities for
citizens to participate in decision-making, to gain experience in government
and to hold public office. It may be contended that these benefits may be
obtained by any system of local or regional government. They are more likely to
be secured, however, in a federal system in which the regional units have a
constitutionally-guaranteed independent existence, and may not be terminated or
controlled by a central authority.
As has been noted, federalism and bicameralism are linked because the
federal character of a nation can be reflected in, and secured by, the
bicameral legislature. Bicameralism and federalism both have the advantage of
enabling legislative assemblies to be more effectively representative of large
and diverse nations. The virtues of federalism, neglected for much of the 20th
century, were rediscovered in the turmoil of recent decades:
Federalism is resurfacing as a political
force because it serves well the principle that there are no simple majorities
or minorities but that all majorities are compounded of congeries of groups,
and the corollary principle of minority rights, which not only protects the
possibility for minorities to preserve themselves but forces majorities to be
compound rather than artificially simple. (Daniel Elazar, Exploring
Federalism, 1987, p. 2)
As the passages from the debates of the Australian founders quoted
above indicate, they were well aware of the principle of compound majorities
which is here identified as the essence of federalism. The same author wrote:
As
the dust settles in the 1990s there are more federations than ever including
more people than ever. These are the foundation stones of the new paradigm. At
present there are twenty-one federations containing some two billion people, or
40 percent of the total world population. They are divided into over 350
constituent or federated states (as against 180 plus politically sovereign
states). (‘From statism to federalism: a paradigm shift’, International
Political Science Review, 17:4, 1996, p. 426.)
As a geographically large country, with a diverse society, Australia has reaped the benefits
of the federal system. Its people frequently take advantage of the expanded
political rights given to them by the system, and invoke its safeguards, for
example, by electing different political parties to state and Commonwealth
governments, and to the two Houses at the Commonwealth level.
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