The Commerce Clause of the US Constitution has generated a respectable body of jurisprudence on the limits of state legislatures in respect to interstate commerce. The basic persuasion, of course, is that no state shall be free to write into law protective measures favoring its own citizens that may provoke other states to retaliate with equally protective measures —to the detriment of national commerce. But the recondite tests—including heightened scrutiny and the balancing of interests applied to the state’s exercise of police power—point to the issues we may reasonably anticipate, should we rewrite our Constitution to make of the Republic a federation.
Each region will have a legislature of sorts—whether styled congresses or assemblies. But it does not follow that there will be a distinct civil code, a code of commerce or a penal code for each region. It is however one of the promises of federalism to Muslim Mindanao that Shari’a shall, in those parts of the Philippines, fully apply, save those provisions that run contrary to constitutional guarantees. And conceivably, the same promise is made to the Cordilleras, although most of the provinces had once voted in a plebiscite against an autonomous region. This is the reason that I earlier wrote that an asymmetrical federal republic seems to be the more reasonable proposition: Regions enjoying powers of the state devolved in different measures.
At one time, the states of the United States had common law governing commercial dealings, whether within the state, or interstate. But as the market increased in complexity as did relations and transactions between market-players, common law was stretched taut, and soon, each state crafted laws dealing with such matters as negotiable instruments, securities, anti-trust and even commercial contracts. Gradually, the US, where common law is enshrined in the Constitution, arrived at the same realization Roman jurists did centuries earlier: The desirability of a code. Hence, a Uniform Code of Commerce that was offered to each State as a model and that, in many parts of the US, was simply enacted into law by state legislatures.
That will not preclude our regional legislatures in the Philippines from enacting commercial laws (once more, it matters little whether they will be called Acts or Ordinances because their statutory status will be clear) that address the particularities of a region. Where indigenous communities live side by side with Filipinos absorbed by main-stream culture, then it may be necessary to provide for transactions between indigenous communities and others—and these may include the codification of customary law that, in turn, will call for very serious and studious anthropological research.
One criterion in American jurisprudence that will certainly be inapplicable in a federal Philippines is the doctrine of “original powers” that can be summarized thus: When a power of the United States is one that the states originally possessed, then the US Congress cannot trump such power by federal legislation. In the Philippines, states or regions have no original powers, because they were not original configurations. The United States was formed from colonies turned states surrendering some of their powers—though not all—that the United States might exist. Not so, in the case of the Philippines, for what was original is Las Filipinas that was a Spanish colony, the Republic that declared its independence in 1898 and was “granted” independence by the United States in 1946.
Another factor that will of crucial importance is that some resources will be found in one or the other region that are vital to the national economy: Consider hydroelectric, geothermal or other sources of renewable energy. But all of this is really part of that greater challenge about determining the extent that we go federal—and the salutary realization that there is no fixed formula for a federal republic, that tough decisions, forged by listens of history as well as the pressures of contemporary life that militate against crippling tribalism, must be made about devolution, decentralization and empowerment.
