For a federal government the Constitution must almost necessarily be a written Constitution which defines the relation between the Central government and the regional governments, marks out the sphere of each, and is paramount over the Constitutions of the regional governments, if each component part of the union has its own separate Constitution.
“To base an arrangement of this kind”, writes Dicey, “upon understandings or conventions would be certain to generate misunderstandings and disagreements.”
The articles of the treaty, or in other words of the constitution, must, therefore, be reduced to writing; the constitution must be a written document for it is the “charter of rights and duties of the federal and state authorities.”
Wheare says that if the government is to be federal, its constitution must be supreme. By the supremacy of the constitution he means that “the terms of the agreement which establishes the general and regional governments and which distributes power between them must be binding upon the general and regional governments. This is a logical necessity from the definition of federal government itself.”
If the Central government and the regional governments are to be coordinate with each other, neither must be in a position to override the provisions of the constitution regarding the powers and status which each is to enjoy.
Definiteness of constitutional status and powers stimulates the will to federate and creates confidence in the federating units that the sanctity of their spheres of jurisdiction will be maintained.
In case of invasion on their rights and encroachment on their constituent functions there are constitutional remedies to seek judicial redress. The power of judicial review is inherent in a federal polity.
2. A Rigid Constitution:
The natural corollary of the supremacy of the constitution, and it being a written document, is that it should not be alterable either by the central legislature or by regional legislatures under their ordinary law-making procedure.
“The law of the constitution,” says Dicey, “must either be immutable, or else capable of being changed only by some authority above and beyond the ordinary legislative bodies, whether federal or state legislatures, existing under the constitution.”
It is essential for a federal government, says Wheare, that the power of amending the constitution, “so far at least as concerns those provisions of the constitution which regulate the status and powers of the general and regional governments, should not be confined exclusively either to the general government or to the regional government.”
If it is confined exclusively to one set of the government, it does not give equality of status to both and it is also probable that the one which possesses this power may in an ordinary process of legislation make an invasion on the powers of jurisdiction of the other.
It does not matter legally where the power of amending the constitution is placed, but “there can be no doubt,” as Wheare suggests, “that practically it is wise to associate both the general government and the regions, either their governments or their peoples, in the process” of amending the constitution.
In the United States amendments to the constitution may be proposed by a majority of two-thirds of both Houses of Congress or by a convention summoned by Congress on the application of the legislatures of two-thirds of States.
The proposed amendments become effective when ratified by the legislatures of three-fourths of the States or by conventions in three-fourths of the States according to the one or the other method of ratification proposed by Congress.
No alterations in the boundaries of the existing States, the constitution further prescribes, can be made without the consent of the legislatures of the States concerned as well as of Congress.
In Australia the constitution can be amended on a proposal by an absolute majority of the two Houses of Parliament of the Commonwealth or in certain circumstances one House and its ratification at a referendum of the people.
If at this referendum a majority of all the electors voting approve the proposed law, and if, in a majority of the states, a majority of the electors voting also approve the proposed amendment, then, it is submitted for the royal assent.
It is further provided, that amendments relating to changes in the representation of the states in either House of Parliament or any alterations in the boundaries of the states must be approved by a majority of the electors in the states concerned.
In Canada, the power of amending the North America Act, 1967, rested with the Parliament of Britain. No authority in Canada had power till 1982 alter the, division of powers between the Dominion and Provincial governments. The convention, as it existed, was that Parliament in Britain would amend the Canadian Constitution on a request from Canada.
But there was no settled convention whether the request for amendment should come from the Dominion Parliament and government alone or from the Provincial Legislatures and governments alone or through some sort of cooperation between the two.
With the partition, of the Canadian Constitution in 1982, the Constitution can now be amended by a resolution of the Senate and House of Commons of the federal government and seven Provinces representing 50 per cent population of the country. The amending formula gives for the first time a legal role to the Provinces in making constitutional changes.
The Constitution of India, like the Union of South Africa Act of 1909, makes no pretence of making a federation. Since Wheare says that the “new constitution of India established, indeed, a system of government which is at most quasi-federal, almost devolutionary in character; a unitary state with subsidiary federal features rather than a federal state with unitary features.”
It would be interesting to note the process of constitutional amendment. The Constitution prescribes three different methods of amending it. Some parts of the Constitution can be amended by a simple majority in both Houses of Parliament, for example, new States may be created or the existing States reconstituted, and Upper Chambers created or abolished in the States.
Then, certain specified subjects, as amendments affecting the method of electing the President, the extent of the executive and legislative powers of the Union or the States, the provisions regarding the Supreme Court, the representation of the States in Parliament, and the method of amending the Constitution, require a majority of the total membership in each House of Parliament, a majority of two-thirds of the members present and voting in each House of Parliament and ratification by the legislatures of one-half of the States.
Finally, for the remaining provisions there must be a majority of total membership in each House of Parliament and a majority of not less than two-thirds of the members present and voting in each House of Parliament.
It follows that if the constitution of a country is to be a living document, responsive to the needs of the people and times, it must contain a provision for amending it, and every federal constitution contains such a provision.
But the process of amending the constitution, which provides a federal polity, must be distinct, involving a different procedure, from the ordinary law-making procedure, and all interests and parties in the federation should be participants therein.
The method of amending a federal constitution is, therefore, more difficult and complex than amending a unitary constitution and it is peculiarly rigid.
3. Presence of Federal Court:
In a federation the necessity of a supreme or federal court with authority to interpret the constitution is an established fact. The federal judiciary performs two important functions: (1) it decides disputes of jurisdiction arising between the central government and the regional governments or between one regional government and another; and (2) it keeps different governments within their limits so that none may encroach upon the sphere of jurisdiction of the other.
If the federal principle is to really work, it is necessary that there should be an umpire independent of both the central and regional governments which should ever be vigilant to prevent either set of government from disturbing the balance between the centrifugal and centripetal forces.
Happy balancing between the two forces is the essence of federalism and there can be no other authority than an independent and impartial judiciary which can act as the guardian of the constitution and thereby protect the constitutional distribution of powers.
The need for the federal judiciary has been expressed by Mill and his words have often been quoted or paraphrased. “It is evidently necessary,” he says, “not only that the constitutional limits of authority of each (central and regional governments alike) should be precisely and clearly defined, but the power to decide between them in any case of dispute should not reside in either of the governments, or in any functionary subject to it, but in an umpire independent of both.
There must be a Supreme Court of Justice, and a system of coordinate courts in every State of the Union, before whom such questions, shall be carried, and whose judgment on them in the last stage or appeal, shall be final.” Sidgwick says that the more stability is given to the constitution by making the process of changing it difficult, the greater becomes the importance of this judicial function of interpreting its clauses.
Every federal constitution, accordingly, provides for an independent and impartial judiciary entrusted with the work of deciding disputes between the several governments, to uphold the supremacy of the constitution and to interpret it.
But while interpreting, the judges also expound the constitution by explaining its implications, as happened in the case of the Doctrine of Implied Powers propounded by the Supreme Court of the United States. The Supreme Court derives its authority directly from the constitution and the method of appointment of the judges, their removal and the pay and allowances they are institutions.