Definitions

1
FederalismMalcomlson Myers Chapter 4

• Definitions
• Origins of Canadian Federalism
• Political
• Constitutional
• Judicial
• Evolution of Canadian Federalism
• Comparative Federalism

2
FederalismMalcomlson Myers Chapter 4

• Federalism a system of (territorially) shared
  sovereignty
• Unitary State
• Sovereignty held by one governing body
• Britain, Ireland, France, Sweden, Italy
• Federal State
• Sovereignty shared among governments
• Inherent versus delegated sovereignty
• US, Australia, Brazil, Germany

3
Comparative Federalism

• Reasons for Federalism
• An additional check on power
• This was original Madisonian justification
• Policy flexibility sensitivity to local
  concerns
• This was more the case in Canada
• Policy experimentation

4
FederalismMalcomlson Myers Chapter 4

• Historical Origins of Canadian Federalism
• Two historical origins
• Province of Canada
• Atlantic Union
• The Canadian Situation
• Canadian (i.e., Province of Canada) politics of
  1850s marred by
• Gridlock (the double majority, failure of
  Brown-Dorian coalition)
• Sectarianism (Rebellion Losses, Gavazzi Riots,
  Corrigan Trial)
• Sectionalism (Movement of Capital question)

5
FederalismMalcomlson Myers Chapter 4

• Historical Origins of Canadian Federalism
• The Canadian Situation (cont.)
• Brown Reformers sought legislative union
  rep by pop
• Coalition w. Rouge Dorian fails in 1856 debacle
  of the Double Shuffle
• Quebecers demanded sectional equality religious
  independence
• Cartier sees that double-majority principle
  cannot continue indefinitely
• Sound economic and security reasons to maintain
  Union
• Deadlock resolved by proposal of federalism

6
FederalismMalcomlson Myers Chapter 4

• Historical Origins of Canadian Federalism
• The Atlantic Union
• Arthur Gordon (Lt Gov of NB) proposes Atlantic
  Union
• Leading Atlantic politicians (Tupper, Tilley,
  McCully etc.) meet in Charlottetown in 1864 to
  discuss matter
• Canadians (Brown, Cartier, Macdonald et. al.)
  invite themselves and propose wider union
• Agree to meet at Quebec 1864

7
FederalismMalcomlson Myers Chapter 4
8
FederalismMalcomlson Myers Chapter 4

• Historical Origins of Canadian Federalism
• The Atlantic Union
• Arthur Gordon (Lt Gov of NB) proposes Atlantic
  Union
• Leading Atlantic politicians (Tupper, Tilley,
  McCully etc.) meet in Charlottetown in 1864 to
  discuss matter
• Canadians (Brown, Cartier, Macdonald et. al.)
  invite themselves and propose wider union
• Agree to meet at Quebec 1864

9
FederalismMalcomlson Myers Chapter 4
The Quebec Conference, October 1864
10
FederalismMalcomlson Myers Chapter 4

• The Quebec Conference
• The best interests and present and future
  prosperity of British North America will be
  promoted by a Federal Union under the Crown of
  Great Britain, provided such Union can be
  effected on principles just to the several
  Provinces.
• "Report of Resolutions Adopted at a Conference
  of Delegates From The Provinces of Canada, Nova
  Scotia And New Brunswick, And The Colonies of
  Newfoundland And Prince Edward Island, Held at
  The City of Quebec, 10th October, 1864, as The
  Basis of a Proposed Confederation of Those
  Provinces And Colonies." Journal of the House of
  Assembly, 1865, Appendix, pp 854-73.

11
FederalismMalcomlson Myers Chapter 4

• The Quebec Conference
• Macdonald in favour of legislative union Brown
  Cartier, less so
• Atlantic provinces worried about their influence
  in larger union
• Federalism as a compromise despite apparent
  failure of American example

12
FederalismMalcomlson Myers Chapter 4

• Confederation
• Popular support for Confederation in Canada
• PEI Newfoundland opt out
• New Brunswick and Nova Scotia agree only
  reluctantly
• Initial union of Ontario, Quebec, New Brunswick
  and Nova Scotia consumated by BNA 1867 1 July
  1867

13
FederalismMalcomlson Myers Chapter 4
14

• "An Act to amend and continue the Act 32 and 33
  Victoria, chapter 3 and to establish and provide
  for the Government of the Province of Manitoba,"
  Statutes of Canada 1870, c. 3, p. 20-27.

15
FederalismMalcomlson Myers Chapter 4

• Expansion of Confederation

16
FederalismMalcomlson Myers Chapter 4

• Constitutional Basis of Canadian Federalism
• Constitution (BNA) Act 1867
• Section 91
• Section 92
• Peace, Order, and Good Government (POGG) clause

17
FederalismMalcomlson Myers Chapter 4

• Constitutional Basis of Canadian Federalism
• Section 91 lists federal powers
• Trade Commerce
• Criminal Law
• Taxation
• Defence
• Residual Power

18
FederalismMalcomlson Myers Chapter 4

• Constitutional Basis of Canadian Federalism
• Section 92 lists provincial powers all matters
  of strictly local or private nature in the
  province.
• Education
• Hospitals
• Municipalities
• Property
• Direct Taxation Licensing

19
FederalismMalcomlson Myers Chapter 4

• Constitutional Basis of Canadian Federalism
• POGG clauses vests residual power in the federal
  government
• It shall be lawful for the Queen, by and with
  the Advice of the Senate and House of Commons, to
  make Laws for the Peace, Order, and Good
  Government of Canada, in relation to all Matters
  not coming within the Classes of Subjects by this
  Act assigned exclusively to the Legislatures of
  the Provinces

20
FederalismMalcomlson Myers Chapter 4

• Constitutional Basis of Canadian Federalism
• Constitution also provides federal government
  with powers of reserve and disallowance of
  provincial legislation
• Lt. Gov. can reserve (i.e., delay grating Royal
  Assent to) provincial laws so Ottawa can examine

21
FederalismMalcomlson Myers Chapter 4

• Constitutional Basis of Canadian Federalism
• Section 56, CA 1867 Disallowance
• ... if the Queen in Council... thinks fit to
  disallow the Act, such Disallowance... being
  signified by the Governor General, by Speech or
  Message to each of the Houses of the Parliament
  or by Proclamation, shall annul the Act...

22
FederalismMalcomlson Myers Chapter 4

• Why, if...
• the Fathers of Confederation intended such a
  strong central government, and
• the constitution so strongly favours the federal
  government,
• are the provinces so powerful and Canadian
  federalism so decentralized?

23
FederalismMalcomlson Myers Chapter 4

• Why, if...
• the Fathers of Confederation intended such a
  strong central government, and
• the constitution so strongly favours the federal
  government,
• are the provinces so powerful and Canadian
  federalism so decentralized?

24
Federalism (cont)Malcolmson Myers, Ch. 4

• Forces generating decentralization
• Judicial interpretation
• Regionalism
• Technological change events
• World Wars and Great Depression
• Income Corporate taxation, Socialized Medicine
• Failure of national party system

25
Federalism (cont)Malcolmson Myers, Ch. 4

• Judicial Interpretation
• Russell vs. Queen (1882)
• Local Prohibition Case (1886)
• Maritime Bank Case (1892)

26
Federalism (cont)Malcolmson Myers, Ch. 4

• Judicial Interpretation
• Russell v. The Queen (1882) Hodge v. The Queen
  (1883)
• Initial success in establishing power of POGG
  clause
• Enunciation of double aspect of powers, i.e., one
  aspect of a function (e.g., funding) may be a
  federal power, whilst another aspect (e.g.,
  administration) may be a provincial power
• Local Prohibition Case (1886)
• Maritime Bank Case (1892)

27
Federalism (cont)Malcolmson Myers, Ch. 4

• Judicial Interpretation
• Russell vs. Queen (1882)
• Local Prohibition Case (1886)
• The exercise of legislative power of Canada,
  in regard to all matters not enumerated in s. 91,
  ought to be strictly confined to such matters as
  are of unquestionably Canadian interest and
  importance
• Maritime Bank Case (1892)

28
Federalism (cont)Malcolmson Myers, Ch. 4

• Judicial Interpretation
• Russell vs. Queen (1882)
• Local Prohibition Case (1886)
• Maritime Bank Case (1892)
• Lt Governors General Governors, i.e., Crowns
  sovereignty equal whether exercised via national
  or provincial government

29
Federalism (cont)Malcolmson Myers, Ch. 4

• Forces generating decentralization
• Judicial interpretation
• Regionalism
• Technological change events
• World Wars and Great Depression
• Income Corporate taxation, Socialized Medicine
• Failure of national party system

30
Federalism (cont)Malcolmson Myers, Ch. 4

• Regionalism
• Geographic distance and economic diversity create
  divergent interests
• Powerful premiers (e.g., Oliver Mowat, Duplessis)
  resist Ottawas dominance
• Alan Cairns The Government and Societies of
  Canadian Federalism
• a version of ambition-against-ambition

31
Federalism (cont)Malcolmson Myers, Ch. 4

• Forces generating decentralization
• Judicial interpretation
• Regionalism
• Technological change events
• World Wars and Great Depression
• Income Corporate taxation, Socialized Medicine
• Failure of national party system

32
Federalism (cont)Malcolmson Myers, Ch. 4

• Forces generating decentralization
• Judicial interpretation
• Regionalism
• Technological change events
• World Wars and Great Depression
• Income Corporate taxation, Socialized Medicine
• Failure of national party system

33
Federalism (cont)Malcolmson Myers, Ch. 4

• Failure of the National Party System
• Two-party monopoly, 1867-1917
• Civil Service Reform, 1908
• Conscription Crisis Union Government, 1917
• Breakdown of Two-party monopoly, 1917-
• Progressives, CCF, NDP
• Dynamics of electoral system (winner-take-all)
• Institutional incentives to play regional politics

34
Federalism (cont)Malcolmson Myers, Ch. 4

• Failure of the National Party System
• Two-party monopoly, 1867-1917
• Civil Service Reform, 1908
• Conscription Crisis Union Government, 1917
• Breakdown of Two-party monopoly, 1917-
• Progressives, CCF, NDP
• Dynamics of electoral system (winner-take-all)
• Institutional incentives to play regional politics

35
Federalism (cont)Malcolmson Myers, Ch. 4

• Historical Development of Federalism
• Quasi-Federalism (1867-1896)
• Classical Federalism (1896-1914)
• Emergency Federalism (1914-1960)
• WW I II
• Rowell - Sirois
• Cooperative Federalism (1960-)

36
Federalism (cont)Malcolmson Myers, Ch. 4

• The Rowell-Sirois Report
• Provinces fail to cope with 1930s Depression
• JCPC deeply hostile to Bennett New Deal
• Report finds
• Provinces do too much with not enough
• Ottawa should handle taxation, unemployment
  relief ensure equalization

37
Federalism (cont)Malcolmson Myers, Ch. 4

• Patterns of Federalism
• Fiscal federalism
• Taxation (direct indirect)
• Federal spending power Conditional (Matching)
  Unconditional (Block)
• Equalization
• Executive federalism
• Asymmetric federalism

38
Comparative Federalism

• Federalism in the United States
• Constitutional design points to a loose
  federation, but the federal government now
  dominates
• Constitutional Basis
• Senate
• Equal representation by state
• Previously elected by state governments
• Amendment X The powers not delegated to the
  United States by the Constitution, nor prohibited
  by it to the states, are reserved to the states
  respectively, or to the people.

39
Comparative Federalism

• Federalism in the United States
• Events
• Rejection of Articles of Confederation
• Civil War decisive rejection of states right to
  secede
• World Wars, the Great Depression the New Deal

40
Comparative Federalism

• Federalism in the United States
• Judicial Interpretation
• Interstate Commerce Clause (Article I, section 8,
  paragraph 3)
• Sherman Antitrust Act (1890) Trust-busting
• FDR, the New Deal, and the Court-Packing Plan
• Civil Rights Cases erosion of states rights
• Party Organization and the Party System
• Parties provide an integrated career ladder for
  politicians

41
Comparative Federalism

• Federalism in Australia
• Constitution suggests weak federal government,
  but opposite is true
• Constitutional Basis
• Consciously modelled on US
• Elected Senate 12 Senators per state
• Constitution lists a small set of exclusive
  Commonwealth powers (interstate commerce,
  taxation), with all else left to states
• States limited in capacity to tax, e.g., state
  sales tax prohibited

42
Comparative Federalism

• Federalism in Australia
• Judicial Interpretation
• Courts protected Commonwealths near-monopoly on
  revenue, taxation
• Centralization in Australia flows mainly from
  Canberras capacity to use its financial capacity
  to involve itself in state policy areas (e.g.,
  education)

43
Comparative Federalism

• Federalism in Australia
• No major social cleavages
• Less hostility to Canberras involvement in state
  policy areas
• Early dominance of Labor Party
• strongly centralist in organization and outlook
• Career ladder for politicians