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:
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.
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.
Copyright © 1991-2003 John F. Knutsen
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