Confederate powers Commentary
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3      Confederate powers

3.1   Sovereignty

The Confederation is co-sovereign with the several states. This means that within the limits of the Constitution it can act independently of the states. It can appoint its own officers, pass its own legislation and so forth. As long as the Con­fed­eration keeps its activities within the limits of the Constitution, the states have no right to interfere.

3.2 The right of making proposals

Section 3.2 grants the Confederation the right of proposing changes in each state's internal legislation to that state's legislature or directly to its citizens. This section has two purposes:  A) It enables the Confederation to force a decision in the state legis­latures, thereby strengthening the powers of reform and protecting minority rights. B) It provides the up mechanism for vertical com­petition. The legis­lature of each state has the power to pull down any con­federate task, cfr. section 1.5. This section provides the counter­ing up mechanism.

By giving the people the power of ar­bitrating between the central government and the state govern­ment, the Constitution ensures that these two governmental layers have the best interests of the people in mind when competing for power with each other.

3.3   Judicial powers

This section 3.3 serves the dual purpose of: A) Putting the Confedera­tion in the traditional role of arbiter in inter-state conflicts; and B) Giving the Confederation primary responsibility for preserving the procedural rights of state citizens.

If the states are able to agree on an alternative mode of arbitra­tion, they are free to do so by treaty. This puts a competi­tive element into the legal system. If confederate courts are efficient and impartial, they will get most of the business, if not, they'll soon find the states opting for alternatives.

To prevent the Confederation from using the judicial powers to encroach on state sovereignty, each state has the right to appeal decisions to the constitutional tribunal (section 1.8).

 This section is the equivalent of the U.S. subsection III.2.1.

3.4 Legislative powers

Section 3.4 grants the Confederation general legislative and treaty powers and authority to requisition funds from the states. Requisi­tions must be apportioned according to population.

Since con­federate laws and treaties are inferior to state laws and treaties, the lack of limitations in confederate legislative subject matter does not endanger the sovereignty of the states. On the contrary, the concurrency of confederate and state legislative powers ensures competitive pressures.

The Confederation's power to tax is limited to requisition funds from each state apportioned according to population, with the added proviso that it may enforce any requisition through the imposition of direct taxes on citizens of non-complying states.

This approach maintains horizontal competition in taxation, and makes confederate taxation impregnable to manipulation.

Direct popular determination of the level of con­federate taxation through a combined requisition/Dutch auction system (see section 8.1 fulfills the three requirements of a system of taxation:

  • ability to raise any amount of money approved by the people

  • inability to raise funds contrary to the wishes of the people

  • compatibility with competition between governmental units

Several possible apportion methods exist. Appor­tion­ment according to popula­tion has the following advantages:

Does not discriminate against successful states, i.e. in this context, states with policies successful in enhancing economic growth.

  • Does not vary the tax burden depending on cultural factors, e.g. whether or not both parents work for monetary wages or whether one of them stays at home to look after the children.

  • Does not discriminate against states with efficient bureaus of statistics and a small informal sector. Neither does it create the need for an elaborate confederate bureaucracy to estimate macro-economic variables for the various states.

  • Is not open manipulation. Countries have been known for instance, to change the definition of price indices by law to nominally achieve objectives like low inflation. Any method of apportionment other than a simple head-count is open to the same kind of manipulation.

  • Makes it easier for the people to monitor and adjust the overall level of confederate taxation. The per capita charge plays the same role in determining confederate taxation as standard weights and measures play in commercial transactions. Standards facilitate information gathering and understanding.

The taxing power is not limited in monetary terms, but it is limited in form. The total requisition may be any amount what­-so-ever, but as long as the individual states pay up, the Con­federation may not impose its own direct or indirect taxes on the citizens.

3.5 The right of enforcing and defending the constitution

Section 3.5 gives the Confederation the authority to use any means necessary and proper to enforce and defend the cons­titution and the several states (See also U.S. I.8.18 for comparison). The Con­federation is thus given the power of defending the constitution both from within and without, and by doing so, protecting its own interests and existence. The power to enforce the Constitution is especially important in the context of the democratic and procedural rights enumerated in chapter 2. Rights of the state citizens. This authority allows the Confederation to use force against state authorities that do not respect popular rights.

Since the power to defend itself is so fundamental to the very existence of a governmental organization, the power of defense would probably have been implied if not given expressly.  The express provision of section 3.5 removes any doubt that may have existed.

This power of defense or enforcement is not ex­clusive to the Confederation. Each state has the same right to defend itself and its institutions, and conflicts between the states and the Confederation are still to be resolved by the constitutional tribunal. Decisions by the tribunal will be as binding on the Confederation as the Cons­titution itself. In the end, it is the Constitutional Tribunal, biased in favor of the states, that will decide what is necessary and proper.

The difference between this "necessary and proper" clause and the cor­respond­ing clause in the U.S. constitution or the current arrangement in the European Community treaties and other federal constitutions, is not so much in what it says, but in who interprets what it says. In the end it is up to the Constitutional Tribunal to provide a body of case law which defines in detail what is meant by democratic government, what constitutes "a reasonable number of citizens", whether or not, or in what circumstances the confederation can force the building of highways, railroads or airports in order to ensure freedom of movement etc., etc. Each one of these decisions are important, but they are not "constitutio­nal". They are not fundamental or constitutional principles, but the applica­tion of fundamental principles to changing cir­cumstances and concrete issues.

The last subsection prevents the individual states from getting the Confederation as a whole embroiled in external conflict. It doesn't prevent each state from defending itself, but it does place limits on aggressive behavior.


Revised: 2004-07-02

Copyright © 1991-2003 John F. Knutsen

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