State Powers Commentary
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1 State Powers

1.1 Sovereignty

Section 1.1 serves two purposes: A) It confirms the independence and sovereignty of each state, and B) it limits the powers of the Con≠federa≠tion to those expressly delegated. This section must be evaluated in the context of the rest of chapter 1 which serves to elaborate on particular aspects of each state's sovereign≠ty and the preservation of that sovereignty.

The preservation of state powers must also be seen in the context of the Constitu≠tion's overall design as a voluntary compact between the states.

The U.S. Constitution and most other federal constitutions lack a similar guarantee of state rights. Accor≠ding to the Preamble of the U.S. Constitution the powers vested in the federal instit≠utions are granted by the people in their collective capacity. One of the reasons for this Preamble was to reduce the influence of the states and their legislatures both in the establishment of the Constitution and on the then new federal government. In practice this Preamble together with other clauses, leaves the State authorities of the U.S.A. and most other federations in a precarious and subservient position in relation to the federal government.

The Tenth Amendment of the U.S. Constitution was an early attempt to tilt the balance back in favor of the states. However, this proved inadequate as it among other deficiencies, left the implied powers of the federal institutions intact (Smith, E.C., page 19).

Section 1.1 follows closely the U.S. Articles of Confederat≠ion Art. II, and is equivalent to the Swiss Constitu≠tion's Article 3.

1.2 Defense

Section 1.2 serves two purposes: A) It reaffirms each state's sovereignty by expressly allowing for state defense and state defense forces; and B) it disallows the use of force in inter-state conflicts. (Actually it disallows the forced entry of one state's troops into another state.)

The second subsection of 1.2 legitimi≠zes peace-keeping opera≠tions by the Confederation through the Confedera≠tion's right to defend and enforce the Constitution (Section 3.5).

The emphasis of section 1.2 is strictly on defense. No state may engage in aggressive extra-territorial behavior without the consent of the Confederation (see subsection 3.5.2).

Section 1.2 cor≠responds to the U.S. Constitu≠tion I.10.3 and the Second Amendment. But it gives each state much wider powers than the Swiss or U.S. Constit≠utions since it doesn't contain the same constraints as those articles. Article I, Section 10.3 of the U.S. Constitution for instance, obligates the states to seek permission from the Congress (i.e. federal authorities) to keep troops or ships of war, cfr. the Second Amendment ("the right to bear arms").

1.3 Secession

Section 1.3 confirms state independence and sovereignty and the fundamental nature of the Constitution as a voluntary compact between states by expressly granting each state the right to secede from the Con≠federation. No government is legitimate unless it rests on the consent of those governed. If the citizens of any one state wants to secede, the confederate government is no longer legitimate with respect to that state, and it should resign its authority. In order for a state to secede it has to submit the question of secession directly to the citizens for decision.

Section 1.3 has no equivalent in the U.S., where the states are not allowed to secede (viz the American Civil War, 1861-64).

In a European context, the Treaty of Rome as amended, is silent on the subject. Allegedly this is because the framers intend the European Union to be permanent and irrevocable. The EU framers have thus decided a priori that the interests of the European institutions are more important than the interests of the Europeans. Presently I do not think there is the slightest risk that the EU would go to war or impose sanctions against a would be secessionist state, but it is most unfortunate and disturbing that the option of doing so seems to have been left open.

1.4 Superior law

Section 1.4 defines the proposed governmental organization as a confederation.  In a confederation state law is superior law, while in a federation central government law is superior law. (According to the definitions employed in this document.)

By making state law superior, the states are given the means whereby they can defend their independence and sovereignty from confederate encroachment.

This section also provides the "down" mechanism necessary for vertical competition (competition between governmental entities at different levels). (See section 3.2 for the cor≠responding "up" mechanism.)

The Treaty of Rome as well as the Swiss and U.S. Constitutions define federal law as being superior law.

1.5 State assumption of a confederate service

Section 1.5 serves the twin purposes of: A) Expressly granting each state the right to take over a confederate task or service within its own jurisdiction; and B) Granting the state a financial compensation corresponding to the savings that might be realized by the Confederation.

Whether the Confederation actually realizes the savings is in this context unimportant. The compensation cannot be made dependent on how well or how poorly the Confederation is organized or managed. If the Confederation is unable to realize any savings due to poor organization, the assuming state should still receive a compensation corresponding to what a well run confederate organization might have realized.

The financial compensation is essential in order to preserve real state autonomy and choice. Without such a clause, state citizens would be obliged to pay for the same service twice; both through state taxation and confederate requisition.

Each state is also allowed to discontinue confederate services on similar terms.

Section 1.5 applies to all welfare legislation and transfer payments of any kind. But this power does not extend to those essential con≠federate judicial powers expressly granted in the Constitution itself (see the Constitutionís chapter 3), as the Confederation has the right to provide these services independent of whether a state wants to assume them. In case of disagree≠ment concern≠ing  which services are essential to the function≠ing of the Con≠federation as a co-sovereign govern≠ment, the issue would have to be referred to the people (state citizens) or if this didn't help, ultimately to the Constitu≠tional Tribunal.

Section 1.5 provides the down mechanism for vertical inter-governmental competition. Through the financial compensation mechanism it provides state authorities with the necessary financial incentives needed to foster competition and innovation. Note that the payment mechanism has been designed with a view to the issue of Public Goods. 

With the exception of expressly delegated confederate tasks, the decision as to which service, con≠federate or state, is going to prevail, is left to the people, cfr. section 3.2.

This section has no equivalent in other federal or confederate constituti≠ons.

1.6 Treaty powers

This section 1.6 serves the purpose of expressly preserving each state's right to make treaties. It is necessary to preserve this right in order to prevent the Confederation from achieving by treaty what cannot be achieved by statute. Term limits on treaties prevent one generation of voters from binding its posterity, cfr. also Section 10.4 Sunset clause.

Section 1.6 allows two or more states to solve internal problems without involving the Con≠federation. Similarly, states may make treaties for solving local issues involving foreign neighbors. It ensures the ability to solve problems at the lowest possible level (subsidiarity).

Issues of legitimate confederate concern are covered by the limitations on secrecy and the constitution's sections 1.2 (deals with internal conflict), 1.4 (treaties are subject to the constitution), 3.5.2 (limitations on movements of military forces) and in a more general sense 3.5.1 (the Confederation's right to enforce and defend the constitution and the states).

This section has no direct equivalent in other federal cons≠titutions. The U.S. Constitution (Subsection I.10.1) expressly forbids the states to enter into any treaties, while the Swiss constitution (Art. 7, 9 and 10) grants the cantons limited treaty powers. The Treaty of Rome grants the European Community exclusive treaty powers with respect to matters of trade and many other important economic issues.

1.7 Regional bodies

The purpose of section 1.7 is to enable the erection of regional bodies.  This enhances vertical competition by providing the people with intermediate layers of government and with additional suppliers of govern≠men≠tal services. It also closes the size gap between a large confederation and smaller individual states and ensures a gradual increase in the territorial reach of governmental units.

Section 1.7 substantially enhances the treaty powers of the states by obligating the Confederation to recognize the existence of regional bodies established by treaty, and by giving the states the option of con≠ferring some of their confederate privileges on regional bodies. Two or more states may for instance, agree to co-operate on the assumption of a confederate service and delegate to a regional body the privil≠ege of receiving financial com≠pensation from the Confederation. Small states may also elect to have their popula≠tions counted together to ensure representation or a better representation in the confederate congress.

Section 1.7 has no equivalence in other constitu≠tions.

1.8 The constitutional tribunal

The twin purposes of section 1.8 is: A) To establish a Con≠stitutional Tribunal for resolution of constitutional conflicts between state authorities and confederate authorities; and B) To ensure that the Constitu≠tional tribunal stays independent of the Con≠federa≠tion.

This section has no direct equi≠valent in other federal constitu≠tions.

Traditionally, federal supreme courts have themselves been part of the federal government and thus biased in favor of the federal government. The history of the United States provides a typical example of how selective interpretation of the cons≠titution has gradual≠ly, but steadily, eroded state rights. By interpreting federal rights widely, and state rights narrowly, there are hardly any state rights or privileges left, and the states are  being reduced to  de facto sub-units of the federal government. Similar tendencies are showing up in the judicial branches of other federations including that of the European Com≠munity.

The proposal attempts to alleviate these problems through several mechanisms:

  • The Confederation has been given no power to influence the selection of the judges. (Usually it is the states that have no or very little influence in the selection of judges.)

  • No proceedings are to take place in the capital, nor is the tribunal allowed to maintain any offices there. This is to prevent the justices from identifying with confederate institutions; and

  • The justices are called into service only at random and hopefully, infrequent intervals. Their primary function and interest will be in their res≠pective state supreme courts.

Section 1.8 contains additional regulations regarding dismissals and pay intended to safeguard the independence of the judges.

1.9 Amendments to part one (the compact)

The purpose of section 1.9 is: 

  • To safeguard state sovereignty by granting the states exclusive rights to proposing amendments to Part one of the Constitution. 

  • To safeguard the rights of state citizens by requiring their consent and 

  • To safeguard the rights of individual states by requiring each state's consent for it to be  bound by any amendment. (Cfr. also section 8.6, the proposed Constitu≠tion's second amend≠ment clause).

Changes affecting each state's sovereignty are adopted by a 60% double majority, but they are binding on each state only to the extent approved by that state.

Changes concern≠ing the inner workings of confederate instituti≠ons (see sections 8.6 and 8.7), on the other hand, are binding if approved by a double majority of 55%.

Section 1.9 has no direct equivalent in other confederate or federate constitutions. Most constitutions do not distinguish between constitutional amendments that merely reorganize central institutions and amendments that transfer power from one level of government to another. Many constitutions leave both decisions in the hands of the central legislature. Very few bother to seek popular approval.

The U.S. Constitution in reality leaves the initiative with the federal Congress. 

The Treaty of Rome does leave the initiative with the states, and requires unanimity. But European citizens have no direct say. 

Sec≠tions 8.6 and 8.7 cor≠respond closely to Art. 121 of the Swiss Constitu≠tion, which however, only requires a simple double majority (50%). 

Revised: 2004-07-02


Copyright © 1991-2003 John F. Knutsen

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