GOMBE STATE UNIVERSITY

FACULTY OF ARTS AND SOCIAL SCIENCES

DEPARTMENT OF POLITICAL SCIENCE
COURSE TITLE: COMPARATIVE FEDERALISM
COURSE CODE: POLS 314
GROUP 11

PRESENTATION

GROUP MEMBERS

UGI 6/ASPS/1085 UGI 7/ASPS/1008

UGI 8/ASPS/1107 UGI 7/ASPS/1075
UGI 8/ASPS/1156 UGI 7/ASPS/1120
UGI 7/ASPS/1109 UGI 7/ASPS/1086
UGI 7/ASPS/1114 UGI 8/ASPS/1087
UGI 7/ASPS/1067 UGI 7/ASPS/1095
UGI 7/ASPS/1025

QUESTION:

CASE STUDIES: OF USA AND CANADA

COURSE LECTURER

ABDULMALIK JAFARU AFEGBUA, (PhD).

JANUARY, 2023
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INTRODUCTION

There are some remarkable differences in the ways that Canada and the United States have
structured their federalisms-differences that teach us not only about the two systems involved but
also about the possibilities of federalism generally. The aim of this article is to provide an
overview of this subject for the reader who is new to it. It will compare the role of the provinces
and the role of the states in the federal schemes of Canada and the United States.
One remarkable truth of the Canadian and United States federalisms is that each country has
departed from the original understanding of the distribution of federal power as expressed in the
Constitution. In both cases,the departure has been accomplished primarily by judicial
interpretation by the nation's highest court. An irony, however, is that each system has evolved to
be more like the plan for the other: In Canada, the intent, clearly reflected in the Constitution of
1867, was for the central government to predominate, but the Judicial Committee of the Privy
Council (which was the ultimate judicial authority until 1949, when that position was inherited
by the Supreme Court of Canada) interpreted provincial powers generously and federal powers
with restraint, giving the provinces a much greater share in the balance of power than had been
contemplated.' The United States has moved in the opposite direction; here the constitutional
plan was one of states' rights, but the result has been strong central government.
The degree of central government power is not the only difference between the systems. If
anyone ever entertained the notion that there was a "normal" way for federalism to be structured,
a comparison of the distribution of legislative power in the United States and Canada would
dispel that notion. On one level, there are noticeable differences in where particular powers are
lodged. Marriage and divorce and criminal law, for example, are governed by the central
government in Canada but the state governments in the United States, while labor law,
nationalized in the United States, is an area jealously guarded by Canada's provincial
governments. Moreover, Canadian provinces have much more exclusive power over local
commerce than U.S. states do. The central government in Canada does not have effective power
to impose economic plans and solutions without the participation and assent of the provinces.
The U.S. Congress, by comparison, has authority to regulate essentially all economic activity.

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In light of the fore-discussion, it is paramount important to down our comparative analysis by
look at the structure and function as well as areas of distinction and similarities between
American federalism and that of Canada.

HISTORY OF AMERICAN
The history of the lands that became the United States began with the arrival of the first people in
the Americas around 15,000 BC.The European colonization of the Americas began in the late
15th century, however most colonies in what would later become the United States were settled
after 1600. By the 1760s, the thirteen British colonies contained 2.5 million people and were
established along the Atlantic Coast east of the Appalachian Mountains. After defeating France,
the British government imposed a series of taxes, including the Stamp Act of 1765, rejecting the
colonists' constitutional argument that new taxes needed their approval. Resistance to these taxes,
especially the Boston Tea Party in 1773, led to Parliament issuing punitive laws designed to end
self-government. Armed conflict began in Massachusetts in 1775.

In 1776, in Philadelphia, the Second Continental Congress declared the independence of the
colonies as the "United States". Led by General George Washington, it won the Revolutionary
War. The peace treaty of 1783 established the borders of the new sovereign state. The Articles of
Confederation established a central government, but it was ineffectual at providing stability as it
could not collect taxes and had no executive officer. A convention wrote a new Constitution that
was adopted in 1789 and a Bill of Rights was added in 1791 to guarantee inalienable rights. With
Washington as the first president and Alexander Hamilton his chief adviser, a strong central
government was created.

BACKGROUND OF AMERICAN FEDERALISM

Federalism is the system of governments that exists in the United States based on the U.S.
Constitution. Under this system the Federal Government has certain powers that are given to it
by the Constitution and the 50 state governments have powers that are reserved to them. There
are also powers that are shared by both the states and federal governments.

When the United States was first established in 1787 the country operated under the system of
Dual Federalism. The federal government and the state governments operated within their own

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spheres of influence. Beginning in 1937, the country moved to Cooperative Federalism where
the federal government seems to exert more and more influence in the affairs of the states.

Another movement calling itself "New Federalism" appeared in the late 20th century and early
21st century. Many of the ideas of New Federalism originated with Richard Nixon.

New Federalism, which is characterized by a gradual return of power to the states, was initiated
by President Ronald Reagan (1981–89) with his "devolution revolution" in the early 1980s and
lasted until 2001.

The last is the recent federalism: - balance between state and federal power has fluctuated in the
21st century. In a 2009 Rockefeller Institute report by Martha Derthick, she argues that "the
normal tendency of federal-state relations in the United States is toward centralization."

STRUCTURE/FUNCTION OF AMERICAN FEDERALISM

American federalism is a system of dual-sovereignty between two levels of government. It is a
constitutional feature that power is divided between the national government and the
governments of the states, and that both are mutually dependant on the other.

American Federalism is also system of government in which the same territory is controlled by
two levels of government. Generally, an overarching national government is responsible for
broader governance of larger territorial areas, while the smaller subdivisions, states, and cities
govern the issues of local concern.

Both the national government and the smaller political subdivisions have the power to make laws
and both have a certain level of autonomy from each other.

In the United States, the Constitution has established a system of “dual sovereignty,” under
which the States have surrendered many of their powers to the Federal Government, but also
retained some sovereignty. Examples of this dual sovereignty are described in the U.S.
Constitution.

Supremacy Clause

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Article VI of the U.S. Constitution contains the Supremacy Clause, which reads, "This
Constitution, and the laws of the United States which shall be made in pursuance thereof; and all
treaties made, or which shall be made, under the authority of the United States, shall be the
supreme law of the land; and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding." This effectively means that
when the laws of the federal government are in conflict with the laws of a state's government, the
federal law will supersede the state law.

Article I, Section 8
Article I, Section 8 of the Constitution describes specific powers which belong to the federal
government. These powers are referred to as enumerated powers.

Tenth Amendment
The Tenth Amendment reserves powers to the states, as long as those powers are not delegated
to the federal government. Among other powers, this includes creating school systems,
overseeing state courts, creating public safety systems, managing business and trade within the
state, and managing local government. These powers are referred to as reserved powers.

Concurrent Powers
Concurrent powers refer to powers that are shared by both the federal government and state
governments. This includes the power to tax, build roads, and create lower courts.

FEATURES OF AMERICAN FEDERALISM

Under American federalism, power and sovereignty are constitutionally divided between the
states and the federal government. American federalism gives more powers to the states than
most other federal systems. This is evident because 3/4 of states need to agree to any
constitutional amendments, states have equal representation in the Senate, and the 10th
amendment gives states broad powers (any powers not explicitly given to the federal government
belong to the states).

Multi-level government.
Bicameral legislature.
Judicial supremacy.
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Written constitution.
Presidential system.

CANADIAN FEDERAL SYSTEM

the historical circumstances which gave rise to it, the evolution of the Constitution on which it is
based, and the way it has both shaped and protected certain fundamental aspects of contemporary
Canadian society, namely, bilingualism, bijuralism,multiculturalism, and a respect for human
rights. Before we examine the past, however, a brief description of present day Canada is in
order.
Originally a union of four provinces, Canada is now composed of ten provinces and three
territories. Canada became a federation in 1867, which makes it the third oldest federation in the
world today, after the United States and Switzerland.! While the term "confederation" is often
used by Canadians when referring to the union of 1867, the term actually refers to the process of
bringing the provinces together into a federation, rather than the adoption of a confederal
structure.

Federalism in Canada is a reflection of its unique geography and history. It is a large country,
second only to Russia in territorial size,3 but it has a relatively small population of
approximately thirty-two million people. The composition of that population has also changed
since confederation. In 1867, Canada was primarily a mix of English and French colonists. The
first settlers from France arrived in 1604. Today, the Canadian population includes individuals
from virtually every country in the world.

Canada has a federal style of government with a federal government and provincial governments.
Each level of government has specific powers and responsibilities that only it can use and these
are described in the Constitution. Neither level of government is in charge of the other. Each
government can use their own powers without interference from other governments.

HISTORY OF CANADA
The history of Canada covers the period from the arrival of the Paleo-Indians to North America
thousands of years ago to the present day. Prior to European colonization, the lands
encompassing present-day Canada were inhabited for millennia by Indigenous peoples, with

6
distinct trade networks, spiritual beliefs, and styles of social organization. Some of these older
civilizations had long faded by the time of the first European arrivals and have been discovered
through archeological investigations.

From the late 15th century, French and British expeditions explored, colonized, and fought over
various places within North America in what constitutes present-day Canada.The now British
Province of Quebec was divided into Upper and Lower Canada in 1791. The two provinces were
united as the Province of Canada by the Act of Union 1840, which came into force in 1841. In
1867, the Province of Canada was joined with two other British colonies of New Brunswick and
Nova Scotia through Confederation, forming a self-governing entity. "Canada" was adopted as
the legal name of the new country and the word "Dominion" was conferred as the country's title.

Although responsible government had existed in British North America since 1848, Britain
continued to set its foreign and defence policies until the end of the First World War. The
Balfour Declaration of 1926, the 1930 Imperial Conference and the passing of the Statute of
Westminster in 1931 recognized that Canada had become co-equal with the United Kingdom.
The Patriation of the Constitution in 1982, marked the removal of legal dependence on the
British parliament. Canada currently consists of ten provinces and three territories and is a
parliamentary democracy and a constitutional monarchy.

Over centuries, elements of Indigenous, French, British and more recent immigrant customs have
combined to form a Canadian culture that has also been strongly influenced by its linguistic,
geographic and economic neighbour, the United States. Since the conclusion of the Second
World War, Canadians have supported multilateralism abroad and socioeconomic development.

HISTORY OF FEDERALISM IN CANADA

The foundations of Canadian federalism were laid at the Quebec Conference of 1864. The
Quebec Resolutions were a compromise between those who wanted sovereignty vested in the
federal government and those who wanted it vested in the provinces. The compromise based the
federation on the constitution of the British Empire, under which the legal sovereignty of
imperial power was modified by the conventions of colonial responsible government, making

7
colonies of settlement (such as those of British North America) self-governing in domestic
affairs.

During World War I, the federal Crown's power was extended with the introduction of income
taxes and passage of the War Measures Act, the scope of which was determined by several court
cases. The constitution's restrictions of parliamentary power were affirmed in 1919 when, in the
Initiatives and the King-Byng Affair resulted in a constitutional crisis which was the impetus for
changes in the relationship between the governor general and the prime minister.

Moreover, he gave the federal parliament the ability to make extraterritorial laws and abolish
appeals to the Judicial Committee of the Privy Council. Criminal appeals were abolished in
1933, but civil appeals continued until 1949.

At the wake aftermath of second world war changers occurred necessitated the continual
modifications in federal structure of Canada till After the 1995 Quebec referendum on
sovereignty, Prime Minister Jean Chrétien limited the ability of the federal government to spend
money in areas under provincial jurisdiction. In 1999 the federal government and all provincial
governments except Quebec's agreed to the Social Union Framework Agreement, which
promoted common standards for social programmes across Canada. Former Prime Minister Paul
Martin used the phrase "asymmetrical federalism" to describe this arrangement. The Supreme
Court upholds the concepts of flexible federalism (where jurisdictions overlap) and cooperative
federalism (where they can favourably interact),

STRUCTURE OF CANADA FEDERALISM

Canada is a federation with eleven components: the national Government of Canada and ten
provincial governments. All eleven governments derive their authority from the Constitution of
Canada. There are also three territorial governments in the far north, which exercise powers
delegated by the federal parliament, and municipal governments which exercise powers
delegated by the province or territory. Each jurisdiction is generally independent from the others
in its realm of legislative authority.[1] The division of powers between the federal government
and the provincial governments is based on the principle of exhaustive distribution: all legal
issues are assigned to either the federal Parliament or the provincial Legislatures.

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The division of powers is set out in the Constitution Act, 1867 (originally called the British
North America Act, 1867)

FUNCTION OF CANADA FEDERAL STRUCTURE

Canada’s federal structure includes the national (or, federal) government, and ten provincial and
three territorial governments. The Canadian Constitution tells us which level of government has
which powers: Section 91 of the Constitution Act, 1867 lists the powers the federal government
has. Section 92 lists the powers that provincial and territorial governments have. The powers
listed in these two sections are not the only governing powers for each level of government in the
Constitution, but they are the most common ones.

What powers does the federal government have?

Peace Order and Good Government: The writers of the Constitution wanted a more centralized
government. One of the ways they did this was to say that the federal government has the power
to make laws for the “Peace, Order, and good Government of Canada”. Commonly referred to as
“the POGG power”, this power is broad and includes three “branches”:

The “gap” branch refers to powers not specifically mentioned in the Constitution, like air traffic.

The “emergency power” branch lets the federal government make laws that it is normally not
allowed to in times of great emergency, like during a war.

The “national concern” branch lets the federal government make laws on matters that are
important for the entire country.

Regulation of trade and commerce: The federal government has the power to regulate trade and
commerce. Although this seems like it could include a lot, courts have said that this power only
allows for the regulation of interprovincial or international trade and the general regulation of
trade as a whole. As a result, there are many specific industries the federal government cannot
regulate, like dairy products or beer. However, the federal government can regulate industries
that fall under one of their heads of powers, like banking.
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Criminal Law: The federal government has the power to make criminal law. This explains why
criminal laws are the same across Canada. The courts have said that a valid criminal law must
have a penalty, a prohibition, and a valid public purpose. However, it is not always easy to define
a crime. Offences like speeding or jaywalking are not crimes, which is why provinces can make
laws about them. Provincial offences typically are not as serious as crimes and usually do not
involve going to jail.

What powers do provincial governments have?

Property and civil rights: Provincial governments have power over property and civil rights. This
includes almost everything to do with property and civil law, including real estate, businesses,
trade, contracts, employment, wills, and civil claims. The only limits are the things that are under
the federal regulation of trade and commerce or other specific federal power.

Matters of a merely local or private nature: Provincial governments can make laws about
anything that is of a local or private nature within the province. This is the provincial catch-all
power and includes anything not listed in the Constitution but that should be dealt with locally.
Examples are laws about traffic, littering, and keeping the peace.

Municipalities: Provincial governments can make laws concerning municipal institutions in the
province. Municipal governments are not really mentioned anywhere else in the Constitution.
That means that every municipal government is made by the provincial government and
dependent on them for their power. The provincial governments allow the municipal
governments to use some of their powers for them, and that is how local bylaws are passed.
Municipal bylaws must therefore be consistent with both the limits imposed by the province and
by the Constitution. However, since municipalities continue to play an increasing role in
delivering services to citizens, many municipalities are seeking more powers from provinces.

Non-renewable natural resources: Provincial governments have power over exploration,

development, conservation and management of resources within the province. This includes
forestry, mines, fish, natural gas, and oil. Provinces can make laws for exporting these resources
to other provinces, but not internationally.

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Other features of Canadian federalism
Courts have found that drawing clear lines between federal and provincial powers is difficult.
They have recognized that some things have a “double aspect”. This means that the federal and
provincial governments can both pass laws on some issues. For example, the province can make
laws about dangerous driving because traffic is a matter of a merely local nature. However, the
federal government can also pass laws against dangerous driving using the criminal law power.
That is why a dangerous driver can be charged with a provincial offence and a federal crime at
the same time. Courts have found a “double aspect” also exists in matters like health and the
environment.

Because some issues have a double aspect, one government acting alone cannot always
accomplish everything it wants to. Courts have strongly encouraged both levels of government to
work together in “cooperative federalism”. If the federal and provincial governments work
together, they can often accomplish more than acting alone. An example would be the creation of
a comprehensive marketing plan for something like eggs, where the provincial government
regulates the local production and the federal government regulates the export and trade.
However, since governments do not always agree, cooperation sometimes involves a lot of
negotiation.

FEATURES OF FEDERALISM IN CANADA

An important feature of Canada’s federalism is the federal government’s spending power. The
federal government typically can raise more money than provincial governments because it has
the power to tax (section 92(3)). One way that the federal government cooperates with provincial
governments is by offering them money in return for passing certain laws. By doing this, the
federal government can indirectly influence matters over which it otherwise has no power. For
example, this is how Canada’s public health care system works. The federal government gives
money to the provinces in exchange for provinces making sure that health care is free to the
public.

Federal parliamentary constitutional monarchy.

Bicameral legislature.
Parliamentary system.
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Written constitution and unwritten conventions.

COMPARISONS BETWEEN THE FEDERAL SYSTEM OF CANADA AND AMERICA

In the United States, the Constitution does not define the areas in which state law can operate;
instead, it leaves that decision to be made primarily by Congress. While in comparison to the
Canadian provinces the states are weak vis-vis the national legislature (except for their
representation there), they are more insulated from national control in other ways.

There is no predefined area in which state law can operate in the United States, but when it does
operate, it is more autonomous and has more independent force than provincial law does in
Canada.

In the United States, national courts sometimes apply state law, but they never claim to be its
interpreter. State law is, by definition, what that state's supreme court says it is. However
unreasonable a state's reading of its own law may appear to the U.S. Supreme Court, that law
nonetheless governs unless the U.S. Supreme Court holds that the law, so interpreted, violates
the U.S. Constitution.
The position that state courts are the final arbiters of the meaning of state law was adopted in this
country in Memphis v. Murdock, decided in 1875.13
Although the result was not required by the Constitution, and also flew in the face of the intent
Congress appeared to express in the statute granting jurisdiction to the Supreme Court, 14
Murdock's approach has remained in effect to the present and indeed is deemed one of the
cornerstones of the federal system. Each year I discuss with law students whether the Supreme
Court was warranted in imposing this system despite the apparent lack of legal justification, and
the consensus often is that the rule that state courts are the arbiters of the meaning of state law
seems necessary. Otherwise, how could the states have any control over the development of their
own law?
Indeed, what would the phrase "state law" even mean if the states were not to have the last word
on what the law of the state is?

Here again the Canadian system illustrates that the United States's ways of doing things are not
the inevitable ones. Nor are they the only workable ones.

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Canada has a system of provincial courts, which are in fact the primary courts in Canada. When
it reviews their decisions, however, the Canadian Supreme Court has the final word in deciding
issues of common law and also in interpreting provincial enactments. Provincial law is not
separated from national law or from the input of national judicial decisionmakers in the same
way state law is in the United States.
The United States system goes even beyond Murdock. In the even more famous Erie R.R. v.
Tompkins, 16 the Supreme Court ruled that lower federal court judges faced with state common
law issues should not fathom their own solutions but should follow decisions of the supreme
court of the relevant state. The concept behind Erie was the same as Murdock's-that to have
control over their own law, state courts, and not federal, must be the authority concerning the
law's meaning.
The Canadian system of allowing federal judicial input into the meaning of provincial law is
something like the system that Erie overruled, the system we associate with Swift v. Tyson. 17
Swift set out the pre-Erie system wherein federal.

Judges decided for themselves state common law issues, partly because common law was seen as
a brooding omnipresence containing one right answer to any question that each judge, state or
federal, could independently strive to discover. Even under Swift v. Tyson, however, state
statutes were exempt from federal judicial input, and state common law relating to real estate and
other immovables was also exempt.
In short, while the Canadian model recognizes much more of a separate and exclusive legislative
sphere for provincial lawmaking than the U.S. model does for the states, it does not grant as
much independence to the provincial law that is thus made; Canada has more centralized judicial
control of provincial law, and provincial courts have less of a separate sphere than provincial
legislatures do, or than the state judicial system does in the United States.
This may tell us something about federalism. It certainly suggests that there are varied ways for
the different levels of government, which are the essence of federalism, to maintain their
significance. It may be that one reason Canada does not need a separate, more independent
provincial law is that the Canadian Constitution leaves for provinces important spheres of
activity in which only provincial law can operate. Maybe as long as a nation has one of these
forms of strong state or provincial power, it does not need others for there to be a strong
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intergovernmental relationship-strong enough to satisfy the demands of a viable federalism. Even
powers as basic as a separate sphere of legislative competence or the ability to interpret one's
own laws are not necessary in order for governments to retain significance if governments have
other important powers.
The U.S. states and the Canadian provinces achieve their power through different mechanisms.
In the United States, states remain significant units of government because they have the
significant power of a separate and independent state law over which the state has the final word.
18 Moreover, there is a large area in which state law operates, although the area is not predefined
or protected from possible future congressional encroachment.

Canada is the override clause in the 1982 Canadian Charter adopting an approach that is contrary
to anything in the U.S. constitutional scheme or experience. The Canadian Charter allows
provincial legislatures to override constitutional decisions. A province can insulate its law from a
finding of unconstitutionality by providing in the law's preamble that it applies notwithstanding
the Charter. It can also reenact the provision and override five years later.
The override applies in areas of fundamental freedoms, legal rights, and antidiscrimination. The
override procedure was adopted to resolve a political impasse over the adoption of the Charter. It
was thought it would be politically costly for provinces to use the override, and thus its use
would be minimal.

In Canada, however, this override scheme, combined with Supreme Court review of provincial
law, carries some elements of giving the provinces the last word on national law, while giving
the national system the last word on provincial! Canada has no separation of powers doctrine as
we know it; in the United States, of course, separation of powers, together with federalism, is at
the root of basic governmental structure. In Canada, courts can perform "non-judicial functions,"
and non-judicial entities can exercise judicial power.

Indeed, in Canada, the courts are part of the negotiating process and seem less separate from
other branches of government than U.S. courts are. The override scheme that Canada has
adopted can be seen as an example of various branches and levels of government working out
solutions through compromise rather than principle. Similarly, the Canadian Supreme Court can
be seen as playing a negotiating role in the decisions in the early 1980s about how the
14
Constitution could be amended, decisions resulting in the adoption of the 1982 Charter. In 1981,
the Supreme Court ruled in response to references made by three provinces that a "substantial
degree" of provincial consent was required to amend the Constitution.

In additional and a clear comparative analysis of Canada American's federal system the
following tabulation of comprehensive crox will presented blow:

Canadian Constitution American constitution

1) The powers of the provinces specifically The powers of the central government were
defined and limited to the list provided under specifically defined and limited to the list
ss. 92, 93 and 95. given under art. 1, s.8.

2) For the major part, the residuary powers The residuary powers were reserved to the
were granted to the federal government States or the people (10th Amendment)
(preamble of s. 91)

3) The Constitution Act, 1867 permits the No such clause in the American constitution
vetoing by the federal government of
provincial legislation (s. 56-57 and 90)

4) All of the upper echelons of the judiciary The federal government controls federal
(federal - such as the Supreme Court of Canada courts; the state governments control the state
- and provincial) are under the control of the courts.
federal government.

5) The chief executive officer of a province The chief executive officer of a state
(Lieutenant-Governor) is appointed, paid and (Governor) is elected by the people of the state.
removable by the federal government.

15
6) Senators (they are supposed to protect Senators (they are supposed to protect region
regional rights and interests) are appointed by rights and interests) were appointed by the
the federal government. legislatures of the states. They are now elected
directly by the people of the state.

7) Criminal law is under federal jurisdiction. Criminal law is under state jurisdiction.

8) The federal government may raise money Federal taxing powers were not as extensive as
"by any mode or system of taxation." in Canada.

9) Under circumstances specified by s. 94, the No such clause in the American constitution
common laws of the provinces (except
Quebec) might be unified under federal
jurisdiction.

10) The federal government has the right to No such clause in the American constitution.
make remedial laws when a province has
adversely affected denominational rights to
education.

11) The federal government has the right to No such clause in the American constitution
declare "works" which are provincial in nature
to be transferred under federal jurisdiction.

12) The federal government pays subsidies to No such clause in the American constitution
the provinces.

13) Even at the level of the vocabulary used, The vocabulary in the US is more egalitarian.
one can easily gather that strength is at the
centre and weakness is in the provinces:

a) To a Governor-General of Canada To the President corresponds a Governor for

correspond Lieutenant-Governors for the each State.
provinces.

16
b) We have a Dominion government but To a United States government corresponds a
provincial governments. State government.

c) Canada has a House of Commons; the The US has a House of Representatives; so do

provinces have Legislative Assemblies. the States.

d) Canada has a Senate; the provinces had The US has federal and state Senates
Legislative Councils.

e) In Canada the federal government has a Not applicable. Rather president to the federal
Prime Minister, the provinces have a Premier. government and governor to the state.

CONCLUSION
In both the United States and the Canadian systems (unlike many other constitutional systems),
there is judicial supremacy, but the systems are organized in different ways. Canada recognizes
far more legislative power in the provinces, as a matter of constitutional law, than the United
States does in its states (although through congressional inaction the states are in fact allowed to
exercise many powers of government). There is no provincial law in Canada that is protected in
the sense that state law is protected in the United States, because in Canada common law is
national, the only provincial law is statutory, and the statutes are subject to interpretation by the
Canadian Supreme Court.

Moreover, there are provisions, although in desuetude, allowing the national government to
reject unsatisfactory provincial laws, through the powers of reservation and disallowance.

In some senses, then, the provinces seem less supreme than the U.S. states. We next find,
however, that after Canada's Supreme Court finds a law unconstitutional, that decision is subject
to override by popular vote in any province.

The judiciary is not accepted as the final arbiter, nor is the federal system. Several aspects of the
Canadian system, such as the lack of independent state law and the existence of nonbinding
17
judicial constitutional pronouncements, would be unthinkable in the United States federal
system, yet seem to work successfully in Canada. Enough has been said to show that the
Canadian experience raises some questions about many of our suppositions in the United States
about what a federal system necessarily entails. Federalism has many forms; moreover, the form
a government adopts is not much controlled by its constitution's language or intent.

Comparison of the U.S. system with Canada's also shows the United States does have strong
states' rights, in some respects, stronger than those of its neighbor to the north, even though the
provinces are generally considered more powerful vis-vis their national government than the
U.S. states.

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Theoretical Politics,Vol. 6, No. 3, July.

Bryce, J. (1921). Modern Democracies. New York: Macmillan Fleiner, T. & Basta, L. (1996).

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