Federalism and the Judges: How the Americans Made Us What We Are by Laurence Claus
Trinity Papers Number 3
Trinity College
The University Of Melbourne
Dr Laurence Claus tutored in law at St. John’s College, University of Queensland, before studying for his doctorate in the University of Oxford. Dr Claus has worked for the High Court of Australia, and with the Honourable Sir Ronald Wilson on a Royal Commission in Western Australia, and has been appointed attorney in the United States Department of Justice at the American Embassy in London. He prepared ‘Federalism and the Judges’ while staying in Trinity as a visiting scholar and tutor in constitutional and administrative law. The paper highlights the importance of distinctly American federalist thinking in the creation of the Australian constitution. This lecture was presented in May 1999.
This paper represents the third in a series prepared by Trinity College which focus upon broad issues facing the community in such areas as education, ethics, history, politics, and science.
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Introduction by the Warden of Trinity College, Professor Donald Markwell. Distinguished guests, ladies and gentlemen – It is a great privilege and pleasure for me, as Warden of the College, to welcome you to this seminar by Dr Laurence Claus on ‘Federalism and the Judges: How the Americans made us what we are’. We are honoured and fortunate to have so many distinguished lawyers here today, and you are very welcome. Laurie Claus is a Visiting Research Fellow of Trinity for this semester, on his way from working for three years as an Attorney in the United States Department of Justice based in the American Embassy in London, to becoming in August one of two law clerks to Judge Frank Easterbrook of the United States Circuit Court of Appeals in Chicago. Despite this American employment, Laurie is of course an Australian. Born on Anzac Day 1968 in Adelaide, he graduated from the University of Queensland in economics and then with First Class Honours in law. After working as Associate to the then Chief Justice of Queensland, Mr Justice Macrossan, as Associate to Sir Ronald Wilson on the ‘WA Inc’ Royal Commission, and as a Research Officer at the High Court in Canberra, Laurie went to Christ Church, Oxford, in 1993 to undertake doctoral research under the supervision of an outstanding Australian legal academic, Professor John Finnis. If I may speak personally, I would like to say that I had met Laurie when he was tutoring at St John’s College in the University of Queensland in 1990, and I was delighted when in 1993 he came to Oxford, where I was then Fellow and Tutor in Politics at Merton College. I greatly valued his advice and assistance on a variety of matters, and greatly valued his friendship. Speaking not as a lawyer but as a mere political scientist, I was also deeply impressed by his incisive and original intelligence. It was therefore a matter of great pleasure for me when the opportunity arose for Laurie to come to Trinity as a visiting fellow. Here we especially appreciate his company and contribution to the intellectual and social life of the Senior Common Room and of the broader College, and his tutoring and mentoring of law students, and we are very grateful that he has agreed to speak to us today and to respond to questions and comments. After Laurie has given his paper and responded to your questions and comments, and before inviting you to stay for some light refreshments, it will be my pleasure to call on Dr Damian Powell. Ladies and gentlemen, it is a great pleasure to call on Dr Laurence Claus to speak on ‘Federalism and the Judges’.
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Federalism and the Judges: How the Americans Made Us What We Are When Europeans came to stay in this land in 1788, European scholarship had already produced a clear idea about what a federal system of government was. But that idea was quite different from the one we have now. A federal system of government was then understood to exist where a group of sovereign states entered into an agreement under which they each delegated part of their sovereign power to a new body, which would act as their agent in the exercise of that power. The term federal comes from the latin foedus, which means treaty. A federal government was a government created by a treaty. When John Locke referred to a state's ‘federative power’ in his Second Treatise of Government he meant its external affairs power. This, he said, contains the Power of War and Peace, Leagues and Alliances, and all the Transactions, with all Persons and Communities without [that is, outside] the Commonwealth.1
Samuel von Pufendorf argued in his Law of Nature and Nations that a federal form of government was sustainable precisely because it did not divide sovereignty – it was a regular form of government in which sovereignty stayed with the member states, who were ‘join'd to each other by a perpetual League or Alliance… being carried on with this Design, that the several States shall for ever link their Safety one within the other, and, in order to this mutual Defence, shall engage themselves not to exercise certain Parts of their Sovereign Power, otherwise than by a common Agreement and Approbation.’2 Where the line of sovereignty was blurred, as it was in the Hapsburg Holy Roman Empire, there was an irregular form of government. And ‘irregularity’ was unsustainable. Pufendorf drew an analogy to a building designed in disregard of the ‘Rules of Architecture’ or which had suffered from ‘some great Fault’ that had ‘been cur'd and made up after a strange and unseemly manner.’3 Pufendorf's principal works acquired influence in the Englishspeaking world through multiple translated editions which were published in London in the early eighteenth century. For Montesquieu, the virtue of a république fédérative was that it could overcome disadvantages of the small scale to which he believed republican government was inevitably confined. In The Spirit of the Laws, he observed: ‘If a republic is small, it is destroyed by a foreign force; if it is large, it is mined by an internal imperfection. …The evil is in the very thing itself; and no form can redress it. Very probable it is therefore that mankind would have been obliged to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical, government. I mean a confederate republic.’4 Montesquieu's conclusion that a truly republican government could endure only over a small space of territory necessarily implied that the federation of republican governments which he had in mind could not amount to a republican government over the whole. A federation was not a nation state in international law. It was at most an intimate form of cooperative arrangement between sovereign states, designed to achieve the sort of economic and defence objectives which prompted creation of the European Economic Community and the North Atlantic Treaty Organization. In 18th century terminology, the European Union in its present form is a federation, indeed a particularly close-knit one, and an 18th century person would be quite non-plussed by talk of a federal Europe which implies something other than what Europe is now. In 1788, the newly independent American states were linked in this kind of federation. The prevailing understanding was that when they said goodbye to Britain, those former colonies had become sovereign states in international law. This understanding was reflected in the treaty under which they federated. Article II of the Articles of Confederation said: ‘Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.’ Citizens of those states could no longer appeal to a higher authority when faced with acts of the local legislature to which they objected – something they could have done, and did do, before the revolution. In colonial America, if a local legislature passed a radical law that seemed to suit some shortsighted democratic majority, like a farm loan forgiveness statute, the affected bankers would have word sent back to London and in due course the measure would be disallowed by the British Government. After the revolution, radical measures by local legislatures were blamed by many in the former colonies for the economic chaos in which they found themselves. In particular, local legislators were discovering the delights of 1. Locke, Second Treatise of Government (An Essay concerning the True Origin, Extent, and End of Civil Government), Chap. 12 (‘Of the Legislative, Executive, and Federative Power of the Commonwealth’), first published 1690 – see critical edition by Laslett, 2nd ed, 1967 at 3. 2. von Pufendorf, Of the Law of Nature and Nations, 4th ed, 1729, Book VII Chapter V at 682-683 (Kennett translation). 3. Of the Law of Nature and Nations, 1729 at 679. 4. de Secondat, Baron de Montesquieu, The Spirit of the Laws, English translation corrected by the author, 1750, vol 1 book 9, chapter 1 (at 183). 4
printing paper money and decreeing for it the status of legal tender for private debts, and the creditor class got horribly burnt as a then-unfamiliar thing called inflation took off. By the mid 1780s most of those who belonged to the economic elite of American society had become convinced of the need for a strong central government to fulfil the stabilizing function which the British Government had previously performed. Some distance from the passions and fashions of local politics was seen as especially important. Alexander Hamilton, an ambitious young lawyer who had married into the plutocratic Schuyler family of New York City, expressed the sentiments of his social class when he said in 1788: It has been observed… that a pure democracy, if it were practicable, would be the most perfect government. Experience has proved that no position in politics is more false than this. The ancient democracies, in which the people themselves deliberated, never possessed one feature of good government. …When they assembled, the field of debate presented an ungovernable mob, not only incapable of deliberation, but prepared for every enormity.5
Hamilton said that during an address to the New York State Ratification Convention, which was charged with considering a proposed new constitution. That document had emerged from a meeting in Philadelphia the previous year. Those at whose initiative the Philadelphia meeting had been called had a clear agenda – they wanted a central government capable of making laws which would override inconsistent state law and constituted in a way which made sound economic policy more likely. At Philadelphia, Hamilton had gone so far as to lament the fact that only a government of republican form could realistically be proposed. In his private opinion, as recorded in James Madison's notes of the proceedings, ‘the British Govt. was the best in the world’ and ‘he doubted much whether any thing short of it would do in America.’ The House of Lords he called ‘a most noble institution. Having nothing to hope for by… change,… they form a permanent barrier agst. every pernicious innovation.’ He concluded, ‘we ought to go as far in order to attain stability and permanency, as republican principles will admit. Let one branch of the Legislature hold their places for life or at least during good behaviour. Let the Executive also be for life.’6 Although his fellow delegates were not prepared to go that far, the model which emerged as a compromise from Philadelphia did involve a central government very different from the obsequious agent of the state governments which had hitherto existed in America. That new central government seemed to be the government of a sovereign nation state. When it made valid laws pursuant to the list of substantial powers conferred upon it, those laws overrode the laws of the state governments. Moreover those laws had what modern European Union bureaucrats covetously call ‘direct effect’ – they weren't just instructions to the state governments, which the latter might treat as admonitions rather than orders, they were laws governing the population. They included a broad power to tax, and it was apparent to opponents even in 1788 that a government which has a priority right to tax and spend can achieve pretty much whatever it wants. And the state governments couldn't even control the composition of this new competitor, because the lower house was to be directly elected by the people, and while the state legislatures picked the senators, a practice which continued until 1913, the appointees scored six year terms – they weren't the kind of quasi-diplomatic representatives whom member states of a true federation would send, because they couldn't be recalled during their terms for failing to vote according to the will of their sponsor state governments. This contrasted strikingly with the existing system in 1788, under which, as prescribed in Article 5 of the Articles of Confederation, each state appointed delegates to the federal Congress annually, and the state legislatures could recall delegates at any time during the year and send others in their stead. The new constitution's opening words identified ‘We the People,’ not ‘We the States’, as creators of the new order, and the document was referred by the Philadelphia convention to specially elected ratification conventions in each of the states rather than to the state legislatures. This occurred even though the existing Articles of Confederation stipulated that they could only be amended by consent of the federal Congress and all of the state legislatures. But those Articles were a foedus among sovereign states. Such was not the status sought for the new document. This new instrument of government was referred to popularly elected conventions precisely so that it would be understood to be a national constitution to which state governments were subject whether they liked it or not, as distinct from a mere treaty, a foedus, among state governments, which those governments might later choose to revoke. Writing several decades after its adoption, Tocqueville in his Democracy in America, called this new system ‘an incomplete national government,’ and he contrasted it with federal government on the basis that the American union government regulated and taxed the inhabitants directly, rather than only addressing its commands to the States. He observed: ‘Here the term Federal Government is clearly no longer applicable: …a form of government has been found out which is neither exactly national nor federal; but no further progress has been made, and the new word which will one day designate this novel invention does not yet exist.’7 Political scientists were later to award custody of the title federation to this strange 5. Elliot, The Debates of the Several State Conventions on the Adoption of the Federal Constitution, 2nd ed., 1881, vol 2 at 253. 6. Farrand (ed.), The Records of the Federal Convention of 1787, 2nd ed, 1937, vol 1 at 288-289 (Madison's notes). 7. de Tocqueville, Democracy in America, 3rd ed., 1838, vol. 1 at 186 (Reeve translation). 5
American hybrid, and the historic idea of a federation came to be called a confederation or a confederacy. That distinction was drawn because this new form of government seemed to be surviving without sliding into a unitary state – the distinction was not made in the eighteenth century, and in the debates surrounding adoption of the new American constitution the terms federal and confederal were used interchangeably. The proceedings at Philadelphia, as recorded by those delegates who published their notes, reveal that both advocates and opponents of this kind of strong national government recognized that it had the potential to reduce the states to subordinate agencies, rather like local government corporations in England. It was universally understood to be a departure from the historic idea of a federation. The advocates had, however, to get the thing through the ratification conventions in each of the states, and to this end they found it useful to insist that the states would remain ‘sovereign,’ without being too precise about what that meant. They also rather cheekily called themselves federalists, exploiting the fact that in the debates during the 1780s about whether the federal government ought to be stronger, those who favoured strengthening the federal government were said to be pro-federal and their opponents, anti-federal. Their opponents, the so-called antifederalists, were infuriated by this nomenclature, because so far as they were concerned the proposed union government would be so strong and so independent that it would not be federal at all. Hamilton didn't help their mood when he suggested at Philadelphia and again in The Federalist No. 9 that any system of split level government could be called federal even if the lower level was completely subordinate to the higher, like local government corporations in England. Nevertheless, Hamilton did pay lip service to the idea of ongoing state sovereignty and did not appreciate having his disingenuousness exposed, as it was at the New York State Ratification Convention. Elliot's Debates record the following: Hon Mr Lansing… It has been admitted by an honorable gentleman from New York, (Mr Hamilton,) that the state governments are necessary to secure the liberties of the people. He has urged several forcible reasons why they ought to be preserved under the new system; and he has treated the idea of the general and state governments being hostile to each other as chimerical. I am, however, firmly persuaded that an hostility between them will exist. This was the received opinion in the late Convention at Philadelphia. That honorable gentleman was then fully convinced that it would exist, and argued, with much decision, and great plausibility, that the state governments ought to be subverted, at least so far as to leave them only corporate rights, and that, even in that situation, they would endanger the existence of the general government. But the honorable gentleman's reflections have probably induced him to correct that sentiment. (Mr Hamilton here interrupted Mr Lansing, and contradicted, in the most positive terms, the charge of inconsistency included in the preceding observations. This produced a warm personal altercation between those gentlemen, which engrossed the remainder of the day.)8
The Tenth Amendment was agreed to, which said, not very helpfully, that if the national government had no power to do something and the states weren't prohibited from doing it, then either the states or the people could do it, but the content of state sovereignty was left a mystery. The historic understanding of federalism was not implemented by the new Constitution, and what was implemented was a compromise ‘arrived at,’ as James Bryce said, ‘by allowing contradictory propositions to be represented as both true.’9 Yes, we are a sovereign nation, but yes we are comprised of sovereign states. As a constitutional document, it failed to articulate principles governing the relationship between the new central government and existing State governments, whose endurance it nevertheless clearly contemplated. And as a compromise, it could not be said to reflect a historically recognized theory of government, to which reference could be had to discover implicit principles. So somebody had to make up those principles, and that somebody was a court, the body designated by the constitution as arbiter of disputes between governments under the new order. The justices of the fledgling supreme court were faced with a political problem, because they had to adjudicate by reference to a constitutional text which had been designed by its drafters to centralise power, but that text had only become higher law because popularly elected conventions had been persuaded that state sovereignty would survive. The opponents of the new constitution were determined to hold its advocates to that claim, and popular sentiment was on their side. The social elite may have largely got the constitution they wanted, but their populist opponents kept winning elections and proclaiming state sovereignty. And those populist opponents found a charismatic leader in Thomas Jefferson, who had missed out on participating at Philadelphia in 1787 due to the rigours of diplomatic life in Paris. When Jefferson defeated the incumbent John Adams for the presidency in 1800, Adams took the opportunity 8. Elliot's Debates, vol 2 at 376. 9. Bryce, The American Commonwealth, 1888, vol 2 at 16 (3-volume version of the first edition). 6
between his defeat and his departure from office to appoint his out-going Secretary of State, John Marshall, to the Supreme Court as Chief Justice. Marshall and the newly-elected Jefferson were cousins and disliked each other with that peculiar intensity reserved for relatives who are embarrassing. Marshall was an ardent centralist, but for much of his long tenure on the court, he faced political and personal enemies in the White House and the Congress who were itching for an excuse to impeach him, and to him fell the difficult task of deciding what, if anything, ‘sovereignty’ meant for relations between the central and state governments. From Marshall came the conclusion that sovereignty required some sort of independence of each government from the other, and from this came the concept, nowhere expressed in the Constitution, of intergovernmental immunity. That concept has proved one of the most durable constitutional ideas to be invented by judges, for it had no basis in constitutional text, nor in historic theories of federalism. In a historic federation, the commands of the federal body can only be directed to the member states – an idea of the states being immune from such commands would make no sense at all. Both the United States and Australia currently have a judge-made rule that the national government usually cannot make laws which are targeted solely at state governments – yet in a historic federation, that was the only kind of law a federal government could make. The belief that in this new form of government, both the parts and the centre had to be in some sense independent, and have something independently to do, has informed constitutional interpretation in the United States and Australia throughout our respective national histories – that idea has often been a consideration in the minds of judges when resolving vagueness and ambiguity in the meaning of the words in our constitutions by which government powers are conferred and limited. But in creating the concept of intergovernmental immunity, the judges applied the idea of independence not simply to interpret the constitution's text, but to add to it. In the case of M'Culloch v Maryland,10 the Supreme Court, led by Marshall, decided that the United States Government had power to create a national bank, and then addressed the question whether a state government had power to impose a tax on the operations of the national bank in that state. The court said no. The court was unanimous, and Marshall wrote the judgment. He pointed out that the laws of the national government were supreme over the laws of the states, but this was not the core of his argument, because supremacy really only suggested that the national government had power to immunize itself from state laws by passing national laws which did so. Marshall had a bigger idea in mind. He concluded that state laws could not apply to the national government anyway. Marshall got this idea by looking at the relationship between sovereign states in international law, and arguing that the relationship between national and state governments in this new American system should resemble it. As one Australian commentator put it in 1907, Marshall's reasoning was ‘such as might have been used by an early jurist in formulating the immunity of a foreign ambassador from local taxation.’11 The States' power to tax, Marshall said, ‘is an incident of sovereignty, and is co-extensive with that to which it is an incident.’ State sovereignty did not ‘extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States.’12 This understanding of the scope of State taxing power rescued the courts from ‘the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power. The attempt to use it on the means employed by the government of the Union, in pursuance of the constitution, is itself an abuse.’13 Marshall did not cite any authority, scholarly or otherwise, for this pronouncement, but it is clear from other decisions he delivered that he was here drawing on his understanding of public international law. In a case called The Antelope,14 decided six years later in 1825, Marshall had to decide whether an American cruiser had acted legally when it seized a foreign vessel engaged in the African slave trade. He concluded, for the Court, that though the slave trade was contrary to the law of nature, 15 it was not contrary to the law of nations, and said: No principle of general law is more universally acknowledged than the perfect equality of nations. …It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, can be devested only by consent, and this trade, in which all have participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of
10. (1819) 4 Wheat. (17 US) 316. 11. Stow, ‘Federal and State Constitutional Domains,’ (1907) 5 Cth L Rev 3 at 10. 12. (1819) 4 Wheat. (17 US) 316 at 429. 13. Ibid 430. 14. (1825) 10 Wheat. 66. 15. Ibid 120. 7
nations; and this traffic remains lawful to those whose governments have not forbidden it.16
By building his theory of national government immunity in M'Culloch upon an analogy to the relation between sovereign states in international law, Marshall implicitly acknowledged the possibility of a reciprocal state immunity from the laws of the national government, and the Supreme Court was subsequently to uphold such an immunity. This olive branch to the advocates of state sovereignty was not appreciated by them when the M'Culloch decision came down, so cross were they at having state taxing power limited. They were especially incensed that the five Justices who owed their appointments to the Jefferson and Madison administrations had signed on to Marshall's opinion. Spencer Roane complained in the Richmond Enquirer ‘that a Supreme Court which was supposed to be Republican had become the bulwark of `a New Federalism'.’17 This moved Marshall to respond anonymously in the Philadelphia Union newspaper, that if Roane had his way ‘the Constitution would be converted into the old confederation.’18 When delegates from the self-governing British colonies of Australasia met in Melbourne in 1890 to discuss the possibility of union, the American model was widely favoured. Chief among the dissenters was Dr Cockburn, the Premier of South Australia, who favoured the historic form of federation, but he was even more anxious that the Canadian model be avoided, especially in view of the power vested in the Canadian Governor-General in Council (that is, the Canadian national executive) to veto provincial legislation. Cockburn noted that the British Parliament had given Canada such a powerful national government for reasons that were irrelevant to the Australian colonies, namely ‘to counterbalance the continually increasing and preponderating influence of the United States’ and ‘as Lord Durham stated, to denationalize the French.’19 The draft constitution which emerged from the 1891 Sydney Convention appropriated the distinctively American structure of a central government invested with a shopping list of powers exercisable directly over the populace, and former colonial governments, which were to be called States, and which would have the residual powers not precluded by constitutional prohibition or the valid exercise of central power. As most of this audience is no doubt aware, the draft produced in committee was primarily the work of Sir Samuel Griffith. Later, as Chief Justice of the High Court, Griffith took up Marshall's understanding of how the relationship between central and state governments should work. In doing so, he faced down determined resistance from the Supreme Court of Victoria, and when the Victorians bypassed the High Court and obtained a vindicating rejection of intergovernmental immunity from the Privy Council, the Griffith court declared itself the final arbiter of intergovernmental disputes and refused to follow their Lordships. In particular, Griffith refused to acknowledge that the Marshallian spheres of sovereignty thesis upon which the Griffith court's intergovernmental immunity doctrine rested could not be found in the constitutional text. Nothing in that text suggested that the legal relationship between national and state governments should imitate that of sovereign nation states in international law, indeed there were many respects in which the text made that impossible. The idea that national and state governments should treat each other like sovereign states whenever that did not clearly violate the text came not from anything in the text, nor from historic theories of federalism. That idea came from John Marshall's head, and to apply it to create constitutional rules for which there was no basis in the constitutional text just because that text had been drafted by reference to its American counterpart, involved an ‘expansion of the canon of interpretation’, as their Lordships said in Webb v Outtrim.20 Making up rules just because those rules were thought most likely to make the system work well was a legislative activity. Judges were allowed to make up common law rules, which parliaments could trump, but not constitutional rules, to which parliaments were subject. Chief Justice Madden of Victoria had observed back in Wollaston's case that Marshall's reasoning in M'Culloch v Maryland resembled ‘and possibly [was]… meant to resemble, the Praetorian Edicts, which laid down in advance, as a sort of manifesto, the principles upon which the Praetor intended to adjudicate…’21 In Webb v Outtrim, the Privy Council declared emphatically that it was ‘not able to acquiesce in any such principle of interpretation.’22 Griffith subsequently complained in Baxter's case that: 16. Ibid 122. 17. Haines, The Role of the Supreme Court in American Government and Politics 1789-1835, 1944 at 357-358; Beveridge, The Life of John Marshall, vol 4, 1919 at 313-318. 18. Haines, The Role of the Supreme Court in American Government and Politics 1789-1835, 1944 at 368, citing Oster, The Political and Economic Doctrines of John Marshall, 1914 at 107; Beveridge, The Life of John Marshall, vol 4, 1919 at 318-320. 19. Official Record of the Proceedings and Debates of the Australasian Federation Conference, 1890 at 141. 20. [1907] AC 81 at 90-91. 21. In re the Income Tax Acts (No. 4) (1902) 28 VLR 357 at 380. 22. [1907] AC 81 at 90-91. 8
Their Lordships seem to have thought that this Court had asserted a power to declare a law invalid on the ground that it is `unconstitutional', using that word in some vague general sense, but meaning something different from a contravention of the written Constitution. This Court, of course, never asserted any such power, nor did it ever occur to it to treat the word `unconstitutional', as used in the American Courts, as meaning anything more than contrary to and forbidden by the Constitution, nor have those Courts ever claimed to do anything more than construe the written Constitution by the light of recognized canons. 23
Yet in the same judgment, Griffith's defence of the intergovernmental immunity doctrine had turned not on the correct meaning of passages in the Constitution, but upon John Marshall's theory, which Griffith confidently repeated. He wrote that it was ‘essential to the attribute of sovereignty of any Government that it shall not be interfered with by any external power,’ and the purpose of the Constitution was to create a new polity, the Commonwealth, ‘with all such attributes of sovereignty as were consistent with its being `under the Crown.'‘ Thus ‘a grant of sovereign powers includes a grant of a right to disregard and treat as inoperative any attempt by any other authority to control their exercise.’24 Section 109, which provided for the supremacy of national law over state law, had, he said ‘no application to the present controversy.’25 Griffith was conscious that in 1891 he had replicated the essential features of the compromise Philadelphia model. That model had been accepted by the Australian conventions without the kind of controversy that had raged at Philadelphia. There had been widespread scepticism among the Philadelphia delegates as to whether the compromise form could sustain itself, and avoid lapsing into a unitary state, but the Australians knew it could, because it had for over a century. And for those among them who were jurists it was equally clear that the endurance of the American form of government was due in no small measure to the Supreme Court's enforcement of its vision of federalism. Of this, Griffith was in no doubt. Having played a primary role in ensuring that the federalism of America would become the federalism of Australia so far as the constitutional text went, he set about, as the new nation's first Chief Justice, ensuring that the federalism of America would become the federalism of Australia so far as unwritten underlying principles were concerned too. Resistance to that understanding of federalism had to be overcome to secure survival of the system. And that was so whether the resistance came from their Lordships above, or from State courts below. In 1920, with Griffith and his original colleagues gone from the Court, the decision in the Engineers' case26 seemed to reject implied constitutional immunity completely, but the effect of that decision was subsequently undermined, particularly by the judgments of Sir Owen Dixon. Indeed the most faithful and effective recapitulation of Marshall's spheres of sovereignty thesis as a basis for immunity in the 20th century occurred not in the United States but here, and its author was Mr Justice Dixon. The reasoning in his dissent in the Uther case27 concerning the basis of federal immunity from state law is pure Marshall, and was, of course, adopted by the court in Cigamatic.28 In both the United States and Australia the implied immunity principle has been modified repeatedly over time and often severed from Marshall's spheres of sovereignty rationale. Sometimes those modifications have expanded immunity, by conferring it on those with whom a government deals, but more often and more recently, immunity has been reduced. But then sovereign immunity as a concept in public international law has similarly been shrunk, and made to turn upon distinctions between governmental and commercial activities, upon the incidence of discrimination against another government, and upon other immunity-narrowing tests which are essentially pragmatic, in that they have not been formulated by reference to any coherent principle defining the parameters of sovereignty. Being sovereign has become almost as meaningless as being a gentleman – something governments are pleased to call themselves, without getting too worked up about its theoretical content. Floating in the background above all else is some notion of institutional independence, and so in the context of American and Australian federalism, being sovereign has ceased to be about the extent of control over those you govern, and become merely about the extent of control over the institutions by which you purport to govern them. On a brighter note, a side effect of the hybrid model of government which the Americans created and the Australians copied has been that it secures the independence and separation from executives and legislatures of those who exercise 23. Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1179 at 1125. 24. Ibid 1121. 25. Ibid 1129-1130. 26. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. 27. In re Foreman & Sons Pty Ltd; Uther v FCT (1947) 74 CLR 508 at 529-531. 28. The Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372. 9
judicial power at the highest levels. This is because a system which has two governments over the same territory which each fancy themselves independent of the other and in some sense sovereign, is going to produce lots of demarcation disputes, and all governments in the system have to acknowledge that an independent adjudicator of those disputes is indispensable. The only alternative is for one of the levels of government to lose any claim to independence, to sovereignty, either through acquiescence or military defeat. If the claim to dual sovereignty is to be maintained, an independent umpire must exist, and must be obeyed. And however that umpire may move the contours of intergovernmental immunity in its future decisions, the contribution of that idea to the history of our federalism is a striking respect in which the Americans made us what we are.
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Closing address: Vote of thanks by Dr Damian Powell, Director of Academic Studies. It is a great pleasure, on behalf of the College and all of us assembled here, to offer a vote of thanks to Dr Laurence Claus for his intriguing and highly entertaining talk on the topic of how the Americans made us what we are, in a constitutional manner of speaking. The highly distinguished group who have gathered here tonight, representing bench, bar and academia, and in all stages of life, reflects both upon the promise of the topic and the distinction of the speaker. Dr Claus shares with the Warden an implausible youthfulness, and a distinguished academic formation at the Universities of Queensland and Oxford. He has been a valued colleague during his sabbatical at Trinity College, and in due course he will leave us for the United States, showing his capacity to move fluidly between the Anglo-Australian and Anglo-American world. He has reminded us, in highly original fashion, of the debt that our nation owes to American notions of Federalism. Laurie began by defining eighteenth-century notions of federalism, notions that some present-day Australian premiers might readily understand. He then explained American notions of federalism at federation, exploring the complex relationship between the letter, and spirit of federalist law. He has brought to life for us the warp and woof of compromise and contradiction in a federalism born through the force of contingent experience. It was this experience, Dr Claus has argued, that provided a powerful motor in Australian constitutional thinking at our own federation. The Americans are themselves ever ready to acknowledge their debt to the English judges, and in particular Sir Edward Coke, for a legacy of judicial independence that finds fruition, perhaps, in the American model. It is something of a commonplace that American and British ideas were conflated in the creation of an Australian constitution. Nevertheless, I found myself wondering, as I thought on the title of this talk, if Australians writing in the field have always been so generous, in acknowledging our particular debt to America, in discussions of our constitutional heritage… A quick survey of the standard Australian constitutional works for the words ‘America’ or ‘United States’ revealed, at first glance, my worst suspicions – I couldn’t find a single one – but I was then simultaneously heartened, and perturbed, to realise that I could find no reference to Sir Edward Coke either. When Laurie arrived at Trinity the Warden asked me to make him welcome and we met in my room to discuss the potential contribution he might make to the College. My wife, who works in publishing, had very generously passed on to me a rather large American tome on Constitutional Law and Judicial Policy Making. In a fit of bravado I assured Laurie – rather recklessly, and not realising that my wife would be sitting in this audience tonight – that he would be rewarded, for just labours in Trinity, with a copy of that work. Tonight, and in many other ways, he has shown that he has earned it, and I would ask you to join me in thanking Laurie Claus for his thoughtful words this evening.
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