Two eminent jurists, Hilario Davide Jr. and Reynato Puno, recently testified at the Senate on the proposed amendment of the Constitution and shift to the federal system of government. But they did not discuss the importance of having a dependable court system to make a federal system work.
A federal system is a complex system of government. The experience of the United States and Canada illustrates the importance of dependable courts in running a federal government. The US constitution enumerated the powers of the federal government and gave residual powers to the states. The British North America Act (BNA, or the Canadian constitution) went the other way and enumerated the powers of the provinces and gave the residual powers to the federal government. In theory, Canada should have had a powerful federal government vis-à-vis its provinces, while in the United States the opposite should have been the case. But what exists now is an Imperial Washington, DC governing the American Union and a weak Ottawa running the Canadian Confederation.
This turn of events, contrary to the plans of those who drafted the US constitution and the BNA, evolved in the face of the political realities of federalization. In Canada, the predominant size of Ontario and Quebec means that whenever these two provinces get together and decide on any issue, that becomes the national policy of Canada. The Canadian courts have to make the incremental changes in the interpretation of the BNA, to make the Canadian Confederation survive. In the United States, the courts also have to make decisions adjusting the allocation of powers between the federal government and the states.
However, one court decision derailed this adjustment and led to the US civil war: the Dred Scott decision in 1857 wherein the US Supreme Court declared that the slave Dred Scott could not sue in US courts by virtue of his being black. The practical application was that a slave who fled to a free state like New York remained a slave and must be returned to his owner. Policemen in New York were called upon to enforce laws protecting slaves, which, under the laws of their state, was illegal. There was widespread nonenforcement of the US Supreme Court decision in the northern states, which eventually led to war.
Had the US Supreme Court ruled otherwise, and declared that a slave who managed to flee to a free state became a free man, the outcome would have been different. Many American economists pointed out that on this basis, slavery would have faded away. The Mason-Dixon Line separating North and South would have been as unguardable as the present US southern borders. It would have been unprofitable for Southerners to maintain slaves. Studies following the US civil war showed that the cost of running slave plantations was not much different from running plantations with newly freed slaves. The reason for this was there was then no provision in place for minimum wages or other social services for laborers. Thus, slavery was simply replaced by a new system of exploiting emancipated slaves.
In the United States, a Supreme Court is classified as composed of either conservatives (strict constructionists in interpreting the law) or judicial activists (who tend to legislate from the bench). The Philippine Supreme Court is neither. In the plunder case involving Juan Ponce Enrile and in the citizenship case involving Grace Poe, the Court was activist. But in the Torre de Manila and the Marcos burial cases, the Court became strictly constructionist.
Conspiracy theorists, nonetheless, point out that at least there is one thing predictable about our Court based on the cases cited: The winning petitioners all have money. The American Union did not survive the Dred Scott decision, and our courts will make many such decisions. If we federalize, God save our country.
Hermenegildo C. Cruz holds a degree in international development jointly conferred by Tufts and Harvard Universities. A retired ambassador, he was posted to Canada, the United States and the Soviet Union and was able to observe “the complexity of running a federal system of government.”