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Published online by Cambridge University Press: 02 February 2016
The division of powers between Federal and State governments and its interpretation by constitutional courts are fundamental elements of a federal system and of Federal-State power relations. The exclusivity or concurrence of powers, supremacy, and the problem of implied powers are some of the issues that appear in the constitutional law of most federations, and indeed stem from the very logic of a federal structure. However, the theoretical literature on federalism has not produced any satisfactory explanation of this logic. This article shows how W.N. Hohfeld’s fundamental legal conceptions may be used to analyse Federal-State relations, and how they are directly applicable in the context of ‘intergovernmental immunities’. The article then elaborates a theory of ‘tertiary’ legal relations, i.e., those arising when the two levels of government act in their regulatory capacity; these relations flow from the triangular nature of the relationship between the two governments and those subject to legislation. The correlations identified between Federal and State powers provide a conceptual framework within which different constitutional questions may be analysed. Adopting Hohfeld’s method of highlighting legal concepts in extracts from judicial decisions, the article uses examples from the case-law of several different federal countries.
1. WN Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23 Yale LJ 16.
2. WN Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale LJ 710.
3. The Hohfeldian ‘no-right’ has been subject to a lot of criticism, both on grounds of its inelegance and its complexity. Further, some have pointed out how the relation between ‘privilege’ and ‘no-right’ is not the same as the relation between the other correlative concepts, and is thus a logical flaw. See, e.g., Lindahl, L, Position and Change: A Study in Law and Logic (Dordrecht: Springer, 1977) at 27.CrossRefGoogle Scholar
4. AT O’Rourke, “Refuge from a Jurisprudence of Doubt: Hohfeldian Analysis of Constitutional Law” (2009) 61 SCL Rev 141 at 147 [O’Rourke].
5. See, e.g., Alexy, R, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002) at 149–162;Google Scholar O’Rourke, supra note 4; Rainbolt, GW, The Concept of Rights (Dordrecht: Springer, 2006) at 9Google Scholar [Rainbolt]; Farbre, C, Social Rights under the Constitution: Government and the Decent Life (Oxford: Oxford University Press, 2000) at 88–90;CrossRefGoogle Scholar J Finnis, “Some Professorial Fallacies About Rights” (1971) 4 Adel L Rev 377 at 382-88; GS Gilbert, “Right of Asylum: A Change of Direction” (1983) 32 Intl & Comp L Rev 633.
6. Surprisingly, there are hardly any references to Hohfeld in such contexts in the scholarly literature. I have found only one such reference, which was with respect to legal relations between regional and local authorities; the author concluded however that Hohfeld’s concepts were not helpful for his purposes: GL Clark, “A Theory of Local Autonomy” (1984) 74 Annals of the Association of American Geographers 195 at 199-200. For a use of Hohfeld in the context of relations between States in international law, see AH Campbell, “International Law and the Student of Jurisprudence” (1949) 35 Transactions of the Grotius Society 113 at 122-23.
7. This device is less effective when considering asymmetries in federations, where different States or provinces may have different legislative powers.
8. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920), 28 CLR 129.
10. McCulloch v Maryland (1819), 17 US 316 at 436 [McCulloch].
11. K Swinton, “Federalism and Provincial Government Immunity” (1979) 29 UTLJ 1 at 6.
12. Of course, the notion of sovereignty in a federation is a contested one.
13. M Mahoney, “Federal Immunity from State Taxation: A Reassessment” (1978) 45 U Chicago L Rev 695 at 695 [Mahoney].
14. McCulloch, supra note 10 at 327.
15. See generally, Mahoney, supra note 13; LH Tribe, “Intergovernmental Immunities in Litigation, Taxation and Regulation: Separation of Powers Issues in Controversies about Federalism” (1976) 89 Harv L Rev 682 [Tribe]; Black, CL, Perspectives in Constitutional Law (New Jersey: Prentice Hall, 1970) at 43–46.Google Scholar
16. There is no need to expressly mention the immunity of Federal revenue from State taxation, as in any case this would be outside the States’ sphere of competence.
17. C Howard, “Some Problems of Commonwealth Immunity and Exclusive Legislative Powers” 5 Fed L Rev 31.
18. See G Sawer, “State Statutes and the Commonwealth” (1958-1963) 1 Tas UL Rev 580 at 584.
19. Pirrie v McFarlane (1925), 36 CLR 170.
20. Tribe, supra note 15 at 700.
21. Johnson v Maryland (1920), 254 US 51.
22. National League of Cities v Usury (1976), 426 US 833.
23. Garcia v San Antonio Metropolitan Transit Authority (1985), 469 US 528.
24. Her Majesty in right of the Province of Alberta v Canadian Transport Commission,  1 SCR 61.
25. It bears repeating that this involves attributing the actions and legal relations of public agencies or enterprises to their respective Federal or State governments. A Hohfeldian analysis would not be relevant—or indeed possible—except under this hypothesis.
26. The situation is different, of course, with respect to the strictly Hohfeldian Federal-State relations. One level of government may enter into an agreement with the other level to create rights, powers etc. in the same manner as it could with a private company.
27. See JM Balkin, “The Hohfeldian Approach to Law and Semiotics” (1990) 44 U Miami L Rev 1119 at 1122-23.
28. M Radin, “Correlation” (1929) 29 Colum L Rev 901 at 903.
29. M Radin, “A Restatement of Hohfeld” (1938) 51 Harv L Rev 1141 at 1150-51.
31. Bulygin, supra note 30 at 202.
32. Rainbolt, supra note 5 at 4.
33. See along these lines A Kocourek, “Acts” (1925) 73 U Pa L Rev 335 at 335.
34. Wickard v Filburn (1942), 317 US 111.
35. Similarly, Andrew Halpin has pointed out that the expression of a power may involve greater or lesser degrees of precision, citing the difference between a power to sign a contract for the sale of land and an ordinary power to make a contract of sale: A Halpin, “The Concept of a Legal Power” (1996) 16 Oxford J Leg Stud 129 at 140.
36. J Bentham, An Introduction to the Principles of Morals and Legislation (first published 1781, Kitchener, 2000) at 65.
38. It was pointed out earlier that the meanings of concepts such as ‘power’ and ‘disability’ cannot be transposed from the Hohfeldian context to the present. As a strict logical consequence, the ‘power—disability’ correlation F—S and the ‘power—liability’ correlations in F—C and S—C do not use ‘power’ with the exact same connotation (because ‘power’ does not mean the same thing in Hohfeldian and non-Hohfeldian terms.) However, since the act associated with the power is the same, this does not seem to create any conceptual difficulty. If required, one could very well consider that we are referring to ‘power’ in two different senses that may be ‘superimposed’ on each other; the correlations identified would be the same.
39. Schneider v The Queen,  2 SCR 112.
40. Ibid at 126.
41. Union of India v Delhi High Court Bar Association, AIR 2002 SC 1479.
42. Gibbons v Ogden (1824), 22 US 1.
43. Ibid at 195.
44. Johannesson v Municipality of West St Paul,  1 SCR 292.
45. Ibid at 318.
46. Attorney General for Alberta v Attorney General for Canada,  AC 356.
47. Ibid at 370.
48. This is not necessarily the case, as there are examples in some federations where State laws have supremacy, e.g., Section 94A of the Canadian constitution. However, in such a case one may simply invert the terms of the analysis presented here.
49. This assumes that the simultaneous existence of different minimum prices is not possible. In some federations—notably in Canada—differing standards are accepted under certain circumstances, but we may ignore this possibility for present purposes.
50. It is possible to argue that it is not exactly the same as the correlation of exclusivity, as the State power will reappear if the Federal law is repealed. The correlation of concurrence as defined here could be modified to include this aspect.
51. Clyde Engineering Co Ltd v Cowburn (1926), 37 CLR 466.
53. The concept of preemption appears under different names and in different forms. In the United States, for example, one speaks of “express preemption”, “implied preemption”, “conflict preemption”, “field preemption”, “obstacle preemption”.
54. See WW Van Alstyne, “Implied Powers” (1986) 24 Society 56.
55. Indeed, this doctrine was evolved in order to soften the rigid exclusivity of competences under the Canadian constitution.
56. See, e.g., B Galligan et al, “Australian Federalism and the Debate over a Bill of Rights” (1990) 20 Publius 53; FL Morton, “The Effect of the Charter of Rights on Canadian Federalism” (1995) 25 Publius 173; A Althouse, “Vanguard States, Laggard States: Federalism and Constitutional Rights” (2004) 152 U Pa L Rev 1745; “Theories of Federalism and Civil Rights” (1966) 75 Yale LJ 1007; AR Watson, “Federalism v. Individual Rights: The Legal Squeeze on Self-Incrimination” (1960) 54:4 The American Political Science Review 887; R Gibbins et al, “Canadian Federalism, the Charter of Rights, and the 1984 Election” (1984) 15 Publius 155; “Reconciling Federalism and Individual Rights: The Burger Court’s Treatment of the Eleventh and Fourteenth Amendments” (1982) 68 Va L Rev 865; JB Kelly, “Reconciling Rights and Federalism during Review of the Charter of Rights and Freedoms: The Supreme Court of Canada and the Centralization Thesis, 1982 to 1999” (2001) 34:2 Canadian Journal of Political Science 321.
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