On the ‘residuum of powers’ in the great Anglo-American Federations: a neo-Bagehotian-Coasean gloss

On the ‘residuum of powers’ in the great Anglo-American Federations: a neo-Bagehotian-Coasean gloss

In some constitutional designs, federation is based on the doctrine of ‘residuum of powers,’ where one level of government is privileged vis-à-vis the other, and where a concomitant enumeration of powers gives rise to a presumption of a restricted capacity to legislate outside powers so specified. The quintessential examples of this approach are the Federal Constitutions of the United States, Canada and Australia. The Coase theorem explains how and why efficiency in the allocation of these powers emerges regardless of the initial allocation of residuum powers. The analysis confirms this Coasean proposition in an evolutionary context. In all three jurisdictions, regardless of the initial allocation of powers, there is a neo-Bagehotian (evolutionary) shift from the canonical constitution and towards an ‘efficient constitution’—an institution that avoids (transaction) costs. Bargaining between general and special purpose governments allocates powers such that transaction costs are avoided. The paper provides an efficiency definition based on the distinction between symmetric federalism (as seen in the United States and Australia) and asymmetric federalism (as seen in Canada). On aggregate, the locus of this efficiency is either central (as in the case of the United States and Australia), or distributed (as in the case of Canada). Specific examples from all three jurisdictions provide further illustrations. Normatively, further efficiency gains could come from developing (constitutional) legal doctrines that dialogue directly with this evolution.

No evidence of copyright restrictions preventing deposit of Accepted version.