Federal Supremacy and the Occupied Field: A Comparative Critique

Abstract

This article undertakes a comparative study of the concept of federal supremacy as it appears in the constitutional texts and judicial doctrine of the United States, Australia, India, Canada, and Germany. It discusses the complex judicial techniques and principles developed in each of these federations, and argues that the approaches based on “conflict” and “field,” respectively, should be distinguished as opposing paradigms of interpretation. The field approach is criticized as being incompatible with a coherent vision of supremacy, and as being itself replete with conceptual problems that are unnecessary to the resolution of cases. It is further suggested that the conflict approach is in itself sufficiently flexible to be adapted to all situations.