Federalist Government in Principle and Practice

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The apparent defects in the federal system, no doubt, provide the basis for this agitation. Nigeria is a federation operating a federal constitution but in practice the country works as a unitary state, a fallout of the centralising tendencies that have come to characterise the governmental system. However, there seems to be a consensus, especially in the southern part of the country that the operation of federalism in Nigeria does not conform to the fundamental principles of federalism.

In other words, there may be a federation without federalism. The Nigerian model is argued to be a reflection of such an incomplete federal arrangement. This article seeks to depict Nigeria as a federation without federalism. It further seeks to examine the quest of the Nigerian people for an authentic federal system. The starting point, therefore, is to make a conceptual clarification between federalism and federation.

This helps to avoid the danger of misapplication and also put the article in a proper theoretical perspective. However, the difficulty in defining this concept has not stopped earlier writers from bequeathing to us some valuable definitions. Federalism may mean different things to different people, but what appears to be constant about this political system is the intrinsic principle that distinguishes it from other systems.

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However, this view poses a problem of applicability because some measures of interdependence and cooperation are necessary for the successful operation of any given federal system. Also, as King 77 posits, a federation is a sovereign state in which the central government incorporates governments of regional units into its decision-making procedure on some constitutionally entrenched basis. Thus federation is a state with two or more tiers of government in which there is a constitutional division of power between the central government which is in charge of the whole territory and the constituent units.

Given these definitions, therefore, Nigeria is a federation. An average citizen in Nigeria is subjected to at least two main levels of authority: that of the state and the country, but does the federation practice federalism? There are basically two legislative lists — the exclusive and concurrent lists. With this constitutional arrangement, it is not difficult to see the dominance of the federal government or put differently, the subordination of the states to the centre.


Principles for State-Federal Relations

Nigeria, a previously unitary state, became a federation in Besides this desire, there was also the presence of certain socio-economic conditions Babalola, ; Suberu, The presence of these factors evidently explains why the initial three-region federation that emerged in reflected the cultural, political and economic differences among the three largest ethnic groups in the country — the Hausa-Fulani, Yoruba and Igbo — which dominated the then Northern, Western and Eastern Regions respectively.

However, the civil war brought about a number of political and economic measures, which in turn resulted in the federal government assuming a central role, particularly in economic activities. Throughout the war years, the states were subordinated to the centre, ostensibly for the effective control of the various divisions of the military. Thus, the concentration of economic powers at the centre resulted in the supremacy of the federal centre as well as the over-centralisation of the federal system. The oil boom of , which coincided with the era of military rule also increased the economic centrality of the federal government.

With the federal government enjoying enormous revenue, particularly from oil sales, the centre became the sole distributor of oil rents, dictating which state got what share of the national oil wealth. The states, in turn, became extensions of the federal government rather than independent tiers of government. What exists today is a federation in which the states are fiscally dependent on the centre.

This is a negation of the federal principle that enjoins independence among the governments of a federation. The effect of excessive concentration of revenue at the centre began to manifest in when state governments started finding it increasingly difficult to balance their budgets. This problem arose when the states began to experience a drop in federal allocations, which is a result of the drop in the price of oil in the international market because public finance is mainly dependent on oil revenue.

In Nigeria, true federalism means different things to different people. Let us begin with the south-west, which is dominated by the Yoruba. His argument is not that Marshall reached the wrong conclusion concerning the constitutionality of the national bank—a position that he could hardly take since he had, as President, switched sides on this measure. What is an end in one case may be a means in another; nay in the same case, may be either an end or a means at the Legislative option.

Yet, he does not specify what these residual powers are. This, it would seem, accounts for the fact that, when he writes of the division of powers, he does so in general, not specific, terms. Indeed, he speaks not so much of powers but of the different objectives, goals, and purposes of the two jurisdictions.

But if the powers cannot be substantively divided so that the parties have a pretty clear idea of where they stand relative to one another, then the answer to maintaining a division must be sought by providing procedures to settle differences as they arise. But, save for very obvious and flagrant cases—and these, in the nature of the case, would usually involve state encroachment on national authority—it is difficult to discern any such rules.

To see this we need only take important areas where conflict could easily have been foreseen. Or what rules do we find for impartially determining the scope and nature of the commerce power relative to the residual powers of the states? This is to say, if agreement could be reached over the rules for the settlement of disputes, controversies between the jurisdictions would substantially subside. Indeed, to the extent any such rules could be refined, such conflict might conceivably disappear altogether.

In short, Madison, in referring to such rules, seems to beg the question. But looking at the phrase from this perspective is not without enormous drawbacks. The fact is that Madison, even writing as Publius, is not at all unambiguous about how disputes should be settled. Truth, no less than decency requires that the event in every case should be supposed to depend on the sentiments and sanction of the common constituents. We have, then, on the face of it, two answers to the procedural question of who should decide: a tribunal, presumably the Supreme Court, or the common constituents.

But this interpretation seems most unlikely, because it is an open invitation to frequent debate about fundamental constituent principles, a debate that could only undermine public confidence in the Constitution. How are they to adjust the boundary line between the national and state authorities?

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The most obvious answer would seem to be through Congress, since it is the only institution that can be said to represent the common constituents. This would oblige those who might contend that the national government has overstepped its bounds to make their case in the political arena in hopes of persuading Congress to reverse itself.

What this means, in turn, is that Madison looked upon the disputes surrounding state-national relations as primarily political issues to be settled through distinctly political, not judicial or constituent, processes. Indeed, as we have already noted, he believed the common constituents would have a distinct propensity to favor the states over the national government should there be any conflict.

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Certain of his points in this respect are noteworthy in light of his later thoughts concerning state-national relations. Every government would espouse the common case. A correspondence would be opened.

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Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. To be sure, they take on an added complexity, but in the last analysis they come down to a search for a suitable procedure or process for settling controversies within his system of divided sovereignty.

As we might expect, it is a search in which we find Madison again shifting ground, so much so that he appears to provide no definitive answer to this critical concern. This can best be illustrated by examining some of his salient positions. We can fruitfully begin with his response to the charge of inconsistency leveled against him for assenting as President to the creation of a national bank.

In this response he argues that an authoritative status attaches to constitutional interpretations that are grounded on a seemingly enduring consensus that finds expression in the political branches of the national government. Yet, in the very same year that Madison signed the bank bill, he saw fit—as we have remarked previously—to veto the internal improvements bill on virtually the same grounds he took in his original opposition to the bank.

In his veto message, however, he is evidently concerned with the matter of precedents and consent. In this instance Madison holds that the national government can secure this power only through the amendment process. While his reversal on the bank issue does help us to determine what constitutes a lasting consensus among the common constituents regarding state-national boundaries, it also raises a number of questions and concerns, some of which are intensified by his veto of the internal improvements bill.

To begin with, what is sufficient precedent for a given constitutional construction? After all, what seems clear is that Madison could easily have found ample precedent to sign the internal improvements bill had he been so inclined for the very reasons he advances in justification for reversing his position on the bank. Assuming precedent to be a legitimate consideration in judging of the constitutionality of a measure, unless we can specify what constitutes sufficient precedent with some degree of precision, it cannot very well serve the ends that Madison had in mind; namely, a high degree of certainty, stability, and continuity concerning the meaning of the Constitution which is necessary for a decent and orderly government characterized by liberty.

We might find, as the very examples before us suggest, that what is sufficient precedent for one might not be so for another. Consequently, over a period of years marked by abrupt changes in partisan sentiment, grounds would exist for both claiming and denying the existence of sufficient precedents. Yet, what if a sizeable minority of one of the parties—perhaps say, the representatives of a particular geographical region—has, over the years, consistently opposed the construction given by legislative majorities? Are we to say, then, that a consensus exists?

In addition to reliance on precedent and consensus as a means for fixing the proper state-national boundaries, Madison also perceived a role that the states might play. Because he was particularly anxious in the later part of his life to dissociate the Virginia Resolutions and Report which he authored from the doctrine of nullification advanced by South Carolina, he was compelled to differentiate, at least to some degree, the proper and improper constitutional modes of state protest against what the states considered to be intrusions on their authority. The most obvious, of course, is that to acknowledge the right of nullification by a single state would undoubtedly lead to chaos ultimately destructive of the Union.

Indeed, why he chose to direct his argument only against nullification by a single state is baffling since the same consequences would flow in rough proportion as the states are less than unanimous in nullifying a particular national law. Of greater significance in light of his other views on this matter is his defense of interposition on purely political grounds; that is, as a formal, structured, and organized protest.

Beyond this there are very serious problems with interposition, so serious that it is highly doubtful that it could ever represent a workable means or method for the settlement of state-national tensions. On the practical side, it should be noted, interposition, however it might be exercised by a state, presumably could be resorted to only when all the states had come to agreement concerning its appropriateness or necessity. Bearing this in mind, there is every reason to believe that interposition would never prove an effective barrier to national encroachments.

It is hardly possible, for reasons that Madison spells out in The Federalist, that Congress would pass a law so blatantly intrusive that all of the states—or even three-fourths or two-thirds—would act to interpose. The negative reception accorded the Virginia Resolutions should have made this much abundantly clear to Madison, the more so as he regarded his case against the national government as conclusive. Thus, at this level, interposition would seem to be totally inadequate for the very purposes Madison had in mind.

In fact, to rely upon it would serve to give the national government a relatively free hand in setting state-national boundaries. What this means is that, even if all the states were to agree to interpose, their subsequent actions would lack constitutional sanction. Why Madison involved himself so deeply in such an exercise and why, afterwards, he sought to justify it on the grounds that he does is puzzling, particularly in light of Article V which provides an easier and constitutional means of redress.

Viewed from this perspective, his doctrine of interposition makes sense; it provides an outlet for the expression of views from the states that prudent politicians at the national level would do well to heed. In the last analysis, to judge from what he does say about it in relation to the Alien and Sedition Acts, he did look upon interposition in this fashion. More than once he reaffirms and amplifies his position as set forth in Federalist In this context Madison was not so much concerned with the Court setting forth general principles or standards for determining state-national boundaries or restraining the national government, as with the capacity of the national government to enforce its laws uniformly among the states.

The first of these, the one that Madison emphasizes here, is relatively free from difficulties. The Court, this is to say, is indispensable for the reasons that Madison sets forth. But, in this respect, he does not advance our understanding of the principles, standards, norms, or doctrines the Court is to use in making its determinations much beyond what he writes in The Federalist.

Theoretical and practical problems beyond those raised in The Federalist do emerge, however, in his second phase. Madison informs us, consistent with his Federalist views, that the political departments of the national government will rarely intrude upon the residual powers of the states. So we may assume that the Court would seldom have occasion to nullify a national law that might be the source of controversy. Suppose, for instance, that Marshall in McCulloch v.

Maryland had declared the national bank unconstitutional on the same grounds originally advanced by Representative Madison. What might the later Madison have said about such a decision in light of the reasons he advanced for his switch on the bank issue? Which decision, that of the common constituents expressed over time or that of the Court, would he have accepted as authoritative? Leaving these and like questions to one side, we do know how he felt the state-national issues would be settled in practice.

At the level of constitutional theory he is somewhat ambiguous. This is understandable. But, the role he suggests for national institutions—i. Nevertheless, as we see from his discussion of the Alien and Sedition Acts in particular, he seems to believe that the most effective remedy for encroachments by the national government is to be had through distinctly political processes at the national level, that is, through an appeal to the common constituents who will bring Congress back into line.

They do not seem to fit into a coherent whole. Of course, we should hardly expect to find too much by way of consistency between his nationalist and post-nationalist stages. But we do find some consistency, which is not altogether insignificant. We have already noted, for instance, that his conception of the foundations of the Union, though unnecessarily obscure in places, remains the same throughout and so, too, does his view of the role of the individual states in resolving federal disputes.

And, it would be fair to say, he was consistent throughout in his opposition to constitutional constructions that would, in effect, render the system consolidated or unitary. While this notion, as we have seen, runs through both stages of his thought, we perceive the problems it raises in terms of theoretical consistency most clearly in the second phase. Moreover, he never faces up to the difficulty that emerges in The Federalist : how viable can a system of divided sovereignty be when the national government is charged with the responsibility of providing for the common defense?

To be sure, he addresses this problem, but his answers do vary. Yet, in fairness to Madison and others who have wrestled with this issue, we should hardly have expected him to provide us with clear-cut or definitive answers. Today, even with the benefit of over two hundred years of experience, we still are no closer than Madison to formulating any such principles or standards. In the last analysis, the search for such rules and principles would appear to be futile. Put otherwise, while the Constitution more or less forces us into resolving these conflicts, it does not provide us with rules or principles for doing so.

We are left to our own devices, within, of course, the general boundaries provided by the Constitution. The most important of these would seem to be those that hold out the prospect of insuring a stable consensus—a consensus that differs from others that emerge from our political processes because a wider and more fundamental complex of considerations and values must necessarily come into play.

For instance, the participants are obliged to address themselves at some point to the constitutional issues involved and whatever consensus does emerge cannot be crafted in terms so broad as to have the effect of abrogating the constitutional principle that stands at the heart of the controversy. Still another aspect of this consensus would be its acceptance by the states. In this regard, Madison seemed to envision the states not only playing a role in shaping the view of the common constituents, but also in setting the broad limits within which the consensus would have to come to rest.

Put otherwise, the views of the states would have to be taken very seriously because state reactions, even those far less extreme than Madison pictures in The Federalist , could well have an adverse effect on the implementation of national policy. Indeed, we can well imagine, given the terms in which Madison writes, that what a majority of common constituents want might have to be severely modified or even abandoned in the face of potential opposition by several states, particularly those in a contiguous geographical area. Thus, the stable consensus comprises something more than just the majority of the common constituents; in many instances, it also has to embody the attitudes that find expression through the agencies of the states.

This seems evident enough because only through the give-and-take of these processes can there be any guarantee or assurance that the outcome does represent a genuine consensus. Obviously, the Supreme Court, given its isolation from the actual give-and-take of politics, is ill-suited to take into account the various forces that must be accommodated to achieve a lasting consensus. What is more, the very nature of the judicial processes precludes measuring the relative intensities of the competing parties.

There is, as we have seen, some evidence to support this interpretation.

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  • While arguable, this interpretation, in the last analysis, is probably not tenable for a number of reasons and considerations we have already examined. Certainly, in the consensual solution, the Court would have a significant role to play. It would, among other things, have to interpret the relevant provision of the national laws in controversies arising from their implementation. In its most important functions, providing for the uniform interpretation of national laws and insuring that state laws do not contravene national laws or authority, the Court would also have an input.

    In other words, it is easy to conceive of many circumstances where the Court would act in the capacity Madison ascribes to it in Federalist 39 without having to concede that it is the final arbiter, short of recourse to amendment, with regard to the proper division of powers. Put another way, it is difficult to believe that the substance of the major decisions of the Court in recent decades—e.

    Madison, we should note by way of concluding, understandably perceived the dangers to his system of divided sovereignty residing in a change in the state of mind of the common constituents concerning state-national relations—a change that would manifest itself in Congress and eventually result in greater consolidation.


    Consequently, what many today conceive of as the problem of federalism—i. Even as he led the nation through the framing and ratification of the Constitution, Madison expressed a lively fear of distant, energetic government, a fear he had displayed through the s The great accomplishment of constitutional reformers had not been a radical redistribution of responsibilities from state to federal hands, but structural reforms allowing Congress to meet the needs that it had always been intended to secure.

    The innovations of , from this point of view, were essentially conservative in their intent. Writings , II, — Jonathan Elliot, 5 vols. Philadelphia: J. Lippincott Co. V, Hereafter cited as Elliot. Vested with this power the scope of national authority would seem to be virtually unlimited. See note 1, this chapter. Writings, V, In fact, contrary to the views of Douglass Adair, Alpheus T. Mason, and others, the text of The Federalist does not reveal any fundamental or significant differences between its principal authors on the major principles of the Constitution. On this point see chapter 1.

    Crosskey did look upon The Federalist in such a fashion. Politics and the Constitution in the United States, 2 vols. Chicago: University of Chicago Press, , I, 8— That is, the permitted category includes all necessary and all proper laws, and excludes only those which are neither. Robert A. Goldwin 1st ed. By the same token one might argue that our economic survival in the highly competitive world economy now requires, more than ever before, that we produce students with a relatively high degree of sophistication in mathematics and the sciences.

    From this it is but a short step to the proposition that to secure a sufficient number of such students there is need for the national government to set down curriculum requirements for the primary and secondary schools across the nation. In other words, his position on the national bank could hardly have been anticipated. In this, however, we see one of the difficulties in employing this method. In other words, the evidence is scanty, to say the least. By shifting, so to speak, to the ratifying conventions to determine intent, his grounds, though highly questionable, were still more defensible.

    Actually the break between Madison and Hamilton became complete before Jefferson reached home from six years in France. Indianapolis: The Bobbs-Merrill Co. Madison, it would appear, wanted the capital located on the Potomac to insure the success of his land speculations. Morton J. Frisch and Richard G. Stevens 2d ed. Peacock, , There are enormous difficulties associated with the Meyers-Schotten position. For instance. To argue that he sought balance would require that we have a pretty good notion of the balance he sought.

    Only with a developed notion of balance or equilibrium is it possible to explain the whys and wherefores of his actions and, thus, to defend him against the charges of acting on the basis of expediency, not principle.

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    For instance, as we point out in the text, it is difficult to see why within such a short period Madison signs the national bank bill and vetoes an internal improvements measure. He recognized that a substantial increase in the number of States and the presence of an external danger would be likely to strengthen the general government at the expense of the States, but he overlooked other factors making for the same result, among them the rapid growth of the North in comparison with the South, the weakening of the old local attachments with the expansion of population into the Western country, the improvement of transportation facilities, and, most of all, the development of a more complex economic life.

    By a curious irony of fate he himself contributed about as much as anyone to the centralizing tendency. George C. But the fact is that no word existed to describe it.

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