The Legal Geography of Expansion: Continental Space, Public Spheres, and Federalism in Australia and Canada

Abstract

This article is a comparative, historical overview of Canadian and Australian federalism. The author seeks to answer three questions: Why did the founders of each country choose a federal system? What sort of federation did they want? What sort of federation did the countries have after judicial review? The first part of the article argues that the rise of federalism was related to nineteenth-century trends such as industrialization and the increasing importance of continental as opposed to the coastal territories. The nation-builders required, the author asserts, a constitutional apparatus that could reconcile economic and nationalist motives for expansion with sentiments of historic colonial attachment and local autonomy. A federal division of sovereignty was therefore attractive. The second part of the article examines what the framers specifically wanted from their federations and suggests reasons why these expectations were partially satisfied and partially disappointed According to the author, the division of legal space permitted national expansion while maintaining regional autonomy. However, federalism offered protection and autonomy not just to levels of government, but to the "private" and "public" spheres of federal society. These spheres were dynamic rather than stable. Finally, in the third section on judicial review, the author argues that centralization in both countries was linked to the "expansion of public space " and the rise of interventionist economics and policies. In Canada, however, constitutional protection for the "private " civil law tradition of Lower Canada limited both centralization and federal intervention in the economy.