The Effect of the Charter of Rights on Canadian Federalism

Canadian experience under the 1982 Charter of Rights contradictsthe orthodox understanding of judicial review as a decentralizinginstitution that performs a checking or blocking function. Charterpolitics in Canada suggest that in a federal system, judicialreview can also enhance values and policies favored by the nationalgovernment at the expense of the constituent units. Rather thanweakening the policy capabilities of the federal government,the Canadian Charter has enhanced its influence. The Charterhas undermined the policy autonomy of the provinces by givinga policy veto to the Supreme Court, an institution that is morereceptive to the policy preferences of national elites, especiallyin the area of language policy. This has aggravated French-Englishrelations, because of the high incidence of judicial nullificationsof Quebec's restrictive language policies. Elite attempts tocompensate Quebec by way of new constitutional amendments (e.g.,the Meech Lake Accord) have been thwarted by the emergence ofan influential coalition of postmaterialist social interests,which use Charter litigation to promote their nonterritorialpolicy objectives. These "Charter Canadians"have opposed constitutionalamendments that would "weaken" the Charter or the Court. Thiscoalition has broken Canadian governments' historical monopolyon the constitutional amending process. By stimulating the democratizationof constitutional politics, the Charter has weakened the institutionsof consociational democracy and elite accommodation. This hasdiminished the influence of all the provinces, but especiallyQuebec, thereby contributing to the recent rise in secessionisttendencies within Quebec.     

The Federal Spending Power in Canada: Nation-Building or Nation-Destroying?

For the past 40 years, the federal spending power in Canadahas been one of the most contentious issues in federal-provincialrelations, and it has been central to Quebec's dissatisfactionwith the Canadian federation. The dispute is rooted in two differentconceptions of federalism and different perceptions of the federalcompact in Canada. English-speaking Canadians tend to view thefederal spending power as the source of highly valued "national"social programs, while the government of Quebec maintains thatthe federal spending power constitutes an invasion of provincialautonomy and, as such, poses a threat to the cultural distinctivenessof the Quebec nation. The governments of Canada and Quebec havereached a tenuous modus operandi, but the fundamental conflictremains unsolved.     

Justice George Sutherland and Commerce-Clause Federalism Before the New Deal

The jurisprudence of Justice George Sutherland illustrates howthe U.S. Supreme Court justified commerce-clause federalismbetween the end of the Civil War and the ascendancy of the NewDeal. Sutherland presented a constitutional and political defenseof federalism grounded in American natural-rights theory. Thisdefense presents arguments that federalism's skeptics and defendershave not considered sufficiently. Skeptics tend to argue thatis impossible to maintain a federalist constitutional arrangement;Sutherland's defense shows how to do so. Federalism's supporterstend to defend the commerce clause on negative grounds, thatit limits government power by forcing the states to competewith each other and Congress to compete with them all. Sutherland,however, drew on a tradition of political theory which stressedthat commerce-clause federalism offered positive benefits bykeeping the federal government lean and mean. It barred Congressfrom regulating on subjects about which it was less informedand competent than state legislators and regulators. By focusingthe federal government on truly national objects like interstatetrade, it left most regulation where citizens could see it-locally.According to this tradition, the commerce clause played a criticalrole in making the national government energetic and effective,and it also ordered local political processes so as to makecitizens self-reliant and fit for republican self-government.     

Public Opinion on Federalism in the United States and Canada in 2002: The Aftermath of Terrorism

This research reports on a public-opinion survey on intergovernmentaland border issues in Canada and the United States conductedin mid-April 2002. In the United States, there was an upsurgein public support for the federal government in 2002 over 2001,and a slight decline in public evaluations of state and localgovernments. Increased support for the federal government wasespecially notable among whites, Republicans, and respondentswith post-undergraduate education-groups that previously registeredlow support for the federal government. Canadians reported lesssatisfaction with all governments in their federal system, lowersupport for their federal government, and much more regionaland partisan division over intergovernmental issues. On internationalborder issues, Americans and Canadians generally agreed thata common border-security policy would be a good idea, thoughCanadians were slightly more likely than Americans to preferease of cross-border trade over improved border security.     

Canadian Federalism, The Charter of Rights, and the 1984 Election

The federal election of 1984 may prove to be a critical eventin the evolution of Canadian federalism. The election createda political climate favorable to a restructuring of the Canadianpolitical agenda away from the "territorial politics" that hasdominated it for several decades, toward a politics of national,non territorial issues. Such a transformation of the politicalagenda had been sought by the Liberal government of Pierre Trudeau,which saw the new Charter of Human Rights and Freedoms as amechanism for promoting a more national politics. The climateof intergovernmental confrontation that characterized the Trudeauera, however, may very well have undermined the Charter's nationalunity potential. Ironically, that potential is more likely tobe realized under the Mulroney Conservatives than it would havebeen under a continuation of the Trudeau regime.     

Public Attitudes toward Climate Science and Climate Policy in Federal Systems: Canada and the United States Compared1

Multilevel governance poses several challenges for the politics of climate change. On the one hand, the unequal distribution of power and interests can serve as a barrier to implementing coherent policy at a federal level. On the other, these features also enable policy leadership among sub‐federal units. In the context of wide variation in climate policy at both national and sub‐federal levels in Canada and in the United States, this paper utilizes an original data set to examine public attitudes and perceptions toward climate science and climate change policy in two federal systems. Drawing on national and provincial/state level data from telephone surveys administered in the United States and in Canada, the paper provides insight into where the public stands on the climate change issue in two of the most carbon‐intensive federal systems in the world. The paper includes the first directly comparable public opinion data on how Canadians and Americans form their opinions regarding climate matters and provides insight into the preferences of these two populations regarding climate policies at both the national and sub‐federal levels. Key findings are examined in the context of growing policy experiments at the sub‐federal level in both countries and limited national level progress in the adoption of climate change legislation.     

The Impact of Federalism on the Organization of Canadian Foreign Policy

The international activities of Canadian provinces—mainlyAlbert, British Columbia, Ontario, and Québec—challengeconventional concepts of sovereignty and the federal view ofa national monopoly in foreign policy. These provincial activitieshave become more important since the early 1970s and have yieldedoutcomes in the field of foreign policy that would not haveoccurred otherwise. Provinces engage in international activitiesfor a number of reasons. They have the capacity, jurisdictionalobligation, and political desire to do so. Economic necessity,especially the international economic environment, is importantmotivation. Both conflict and cooperation with Ottawa also encourageprovincial involvements in international activities. Occasionally,foreign governments invite such activity as well. Present trendscoupled with the constitutional division of responsibilitiesin Canada suggest that territorial transgovernmentalism willhave greater consequences for Canadian foreign policy, therebygiving to Canada's international presence a character similarto the complexities and contradictions of the country's domesticmosaic.     

WATER RESOURCE DEVELOPMENT

Both the federal and state governments have strong constitutional daims and political resources with which to influence the allocation of water resources. Until the 1970s. federal agencies were able to dominate kr setting goals and objectives. However, when the federal government attempted to implement a national water policy in the 1970s, effective opposition was mounted by the states. Both the states and the federal government now exert decisive influence in water policy.     

India: Searching for a Consensus by Amending the Constitution?

Two major themes have dominated the debate over India's constitutional destiny since the 1980s: parliamentary versus presidential government and federalization of its predominantly parliamentary system. India will do well to continue with its parliamentary form of government. Besides familiarity with it through British colonial experience and practice for nearly half a century, India's social diversity and fragile democracy are better served by a “collective” parliamentary/cabinet system than a “singular” presidential one. The latter may prematurely centralize the system and promote executive aggrandizement and adventurism. But India's continental diversity and complexity cannot be adequately represented solely along the parliamentary axis; they require the additional — and more vigorous — federal axis for democratic accommodation and national integration. The impact on India's parliamentary/federal system of the changing nature of the party system and premiership styles is also analyzed. Six phases of party system evolution are identified: (1) predominant party system-I (1952–1969); (2) multi-party system-I (1969–1971); (3) predominant party system-II (1971–1977); (4) two-party system (1977–1984); (5) (a stillborn) predominant party system-Ill (1984–1989); and (6) multi-party system-II (1989–to date). Three styles of prime ministerial leadership are delineated: (1) pluralist, (2) patrimonial, and (3) federal. Federal forces and features of the political system were generally accentuated when the party system was not a one-party dominant one and the prime ministerial leadership was not a patrimonial one. Some viable constitutional amendments designed to promote federalization are considered. The two particularly promising avenues of federalization that combine “responsible federalism” with “responsible parliamentary government” are those that establish a series of autonomous federal instrumentalities recommended by the Sarkaria Commission and create a President-in-Council interlocked with the Inter-Governmental Council that takes away the power of proclaiming president's rule in a state from the federal Home Ministry.     

Bicommunalism and Canadian Constitutional Reform

The concept of bicommunalism may be invoked in order to clarifyissues relating to Quebec's place in Canada. Since 1960 theQuebec government has put forward constitutional and fiscaldemands that have implied a view of Canada as a bicommunal polityof "two majorities" (Francophone Quebec and Anglophone Canada)in contrast to a bicommunalism of majority and minority (Englishand French Canadians). Many Canadians, however, view their countryas pluralistic and multicultural rather than bicommunal. Thesediffering perceptions help explain recent constitutional controversies—notably,Quebec's rejection of the Constitution Act, 1982. In 1987 thefirst ministers (the prime minister and provincial premiers)reached a unanimous constitutional agreement, the Meech LakeAccord. The accord goes a certain distance toward meeting thetraditional constitutional demands of Quebec, but its underlyingprinciples are not bicommunalist. Perhaps the accord marks theend of bicommunalism in Canada. One cannot be sure of this,however, because (among other reasons) the accord may neverobtain the legislative support needed to bring it into force.     

Public Enterprises and Canadian Foreign Economic Policy

To what extent can public enterprises serve as instruments ofpolicy enabling the federal government to assert a measure ofcontrol over Canada's foreign economic relations? This articlepresents an overview of public enterprises in Canada and highlightsthe special features of the Canadian political economy whichdifferentiate it from other advanced industrial economies. Theactivities of the Canada Development Corporation and CanadianNational Railways are analyzed in terms of whether they reinforceor undermine the federal government's authority in foreign economicpolicymaking. It appears that the relative autonomy of publicenterprises from government controls, most pronounced in thecase of commercial enterprises operating in competitive markets,fragments decisionmaking. Given that governmental power in Canadais already fragmented due to competitive federalism, and giventhe expanded activities of provincial public enterprises inrecent years, a lack of direction over the "subgovernment" offederal public enterprises compounds the difficulties for Ottawato conduct a coherent, foreign economic policy.     

Leveson Past,Present and Future: The Politics of Press Regulation

As a result of the phone‐hacking scandal and evidence of other serious journalistic abuses by some newspapers, the government set up the Leveson Inquiry to hear evidence from victims and to make recommendations for a new and effective system of press regulation. Leveson's recommendations for independent self‐regulation overseen by a “recogniser” was seen as a moderate solution which would uphold the principle of an unfettered press while providing appropriate protection from unscrupulous or unethical press behaviour. After historic cross‐party agreement, Parliament passed a resolution accepting a Royal Charter which adopted the great majority of his recommendations. In response, Britain's main national newspapers have pursued a campaign of systematic misinformation and distortion, aimed at discrediting the inquiry, its supporters and the cross‐party Charter, while promoting a different system which would remain almost wholly controlled by the industry and would in practice be little different from the discredited Press Complaints Commission. After decades of ineffectual political response to press abuse and press power, there is now a historic opportunity for Parliament to assert its sovereign power. Over the next 12–18 months, we will see whether we have reached a genuine milestone in British public life or whether the British press will remain the last bastion of unaccountable power.     

Decentralized Governance under Centralized Party Rule in Ethiopia: The Tigray Experience

Abstract

In the mid-1990s Ethiopia adopted a federal constitution promising regional autonomy and the creation and strengthening of local government units below the regional level. Some observers attribute the various shortcomings of Ethiopian federalism that have emerged since then to the original institutional/constitutional design. This paper, however, argues that what is not in the constitution has come to influence the workings of decentralization more than what is codified in it. The dominant national party in power, the Ethiopian People's Revolutionary Democratic Front (EPRDF), either directly or through affiliates, controls political office at all levels of government, thereby limiting the room for local initiative and autonomy. The presence of a national dominant party limits the responsiveness and downward accountability of Wereda (district) authorities; it also undermines political competition, and by extension, good governance at the grassroots level. The paper is based on field research carried out in the Tigray regional state of Ethiopia. The conclusion is that when one party dominates the politics of the region and its institutions, extra-constitutional intra-party politics determine how things work, thereby subjugating localities’ autonomy and impeding their ability to deliver on promises of decentralization.     

Incremental Thinking: "Congressional Debate on the Budget and Accounting Act of 1921 (Excerpts)"

Editors' Note : The Congressional Budget Act of 1974 was designed to improve the budget-making process of the national legislature. Although this new process has been in use for less than a decade, proposals for a constitutional amendment to limit the budget powers of the federal government are advancing through Congress. In assessing the potential and problems of budget reform, it would be wise to recall the expectations that animated the introduction of presidential budgeting more than 60 years ago. The following excerpts from the October 1919 debate in the House of Representatives on the legislation that ultimately became the Budget and Accounting Act of 1921 have a contemporary ring. The problems are not new, and one wonders whether the solutions are as easy as some claim.     

National Constitutional Courts,the Court of Justice and the Protection of Fundamental Rights in a Post-Charter Landscape

This article critically evaluates the possible impact of the Charter on the relationship between the Court of Justice of the European Union (CJEU) and national constitutional courts. While it is premature to provide a definitive assessment of the kind of collaboration that these courts will develop, it is crucial to identify a number of features of the new landscape that will influence the direction in which the relationship between the CJEU and constitutional courts will evolve. This article discusses several reasons that may result in better or a higher number of judicial interactions, as well as factors that may create tension or cause problems in the relationship between the CJEU and national constitutional courts. As such, it offers a framework that may help us to understand future post-Charter judgments by these courts setting out how they conceive their engagement with their counterpart(s) on fundamental rights issues.     

Retrofitting the Administrative State to the Constitution: Congress and the Judiciary's Twentieth-Century Progress

One of the twentieth century's "big questions" for United States government has been how best to retrofit, or integrate, the full-fledged federal administrative state into the constitutional scheme. The public administration orthodoxy initially advocated placing the executive branch almost entirely under presidential control; Congress and the federal judiciary responded otherwise. Congress decided to treat the agencies as its extensions for legislative functions and to supervise them more closely. The courts developed an elaborate framework for imposing constitutional rights, values, and reasoning on public administration practice. As the challenge of retrofitting continues into the twenty-first century, public administrators might profitably play a larger role in the constitutional discourse regarding the administrative state's place in constitutional government.     

German Federalism After Unification: The Legal/Constitutional Response

The collapse of communism in East Germany and the resultingGerman unification produced a new focus on the operation offederalism in a unified Germany and on certain reforms concerningfiscal federalism and various constitutional amendments. Theinitial decisions about financing the new Länder in theEast soon proved to be inadequate, and after much controversya new "solidarity pact" was concluded between the federal andLand governments in March 1993. To counter recent trends towardincreasing centralization, a constitutional commission proposeda number of amendments, now under consideration by the federalparliament, which would strengthen the Länder vis-à-visthe federal government. The Länder have also been concernedabout the growing interference by Brussels in their affairs.As a result of recent changes in the Basic Law, they have strengthenedtheir position in relationship to the federal government andthe European Union.     

Federalism and the Strong-State/Weak-State Conundrum: Canadian Economic Policymaking in Comparative Perspective

The areal dispersion of power and constitutional division ofresponsibilities in federal arrangements are generally feltto limit the ability of federal systems to improve economicperformance. Examining Canada within a comparative framework,we assess "the federations as weak states" hypothesis as wellas the utility of the "strong-state/weak-state" model itself.Although some aspects of the Canadian federal system—namelythe combination of federal with parliamentary traditions andthe resulting adverse policy styles—inhibit the adoptionof effective economic adjustment policies, these features arenot necessarily found in other federal arrangements. Comparisonswith Switzerland, Austria, and West Germany suggest that, undercertain circumstances, federal power sharing may be conduciveto bringing about broad agreement on both goals and policiesamong national, regional, and local governments and major economicactors.     

论宪政约束下的电子政府模式

随着数字技术、信息技术和网络技术的发展,电子政府正在成为一场政府改革运动.本文认为,电子政府建设使信息控制权成为影响宪政结构的权力因素,同时对公民也提出了更高的素质要求,影响了公民权利平等;要使电子政府服务于宪政,服从于宪政对国家权力的安排和公民平等的基本原则,就需要对信息控制权进行宪政规划,对政府的边界进行改造,这在我国电子政府建设初期,尤其重要.     

Constitutional and Human Rights Disturbances: Australia’s Privative Clauses Created Both in an Immigration Context

With the arrival of another wave of “boat people” to Australian waters in late 2009, issues of human rights of asylum seekers and refugees once again became a major feature of the political landscape. Claims of “queue jumping” were made, particularly by some sections of the media, and they may seem populist, but they are also ironic, given the protracted efforts on the part of the federal government to stymie any orderly appeals process, largely through resort to “privative clauses”. Such clauses demonstrate the many ways in which human rights of those seeking asylum in far-off lands and are potential future immigrants, who often lack much-touted needed papers, yet who are for the most part genuine refugees, are subject to the slings and arrows of political fortune (and misfortune). Approaching the courts if treated unfairly or seeking a further decision as to your fate would seem one of the fundamental premises of human rights. Yet privative clauses—or attempts to ouster the jurisdiction of the courts and to insulate decisions from appeal—have become an increasingly frequent feature of the Australian migration legislation. With a seemingly watertight federal constitutional power set in stone since 1901, to deal with migration and aliens, and without the tempered contemporary update of a federal Bill of Rights, the Australian federal government has been able to narrow the grounds of judicial review in those contexts. We argue that the concerted efforts to deny such fundamental rights of appeal to those most in need of the full armoury of the protection of the law in a modern, affluent democracy, constitutes both a breach of their human rights and a breach of core constitutional principles such as separation of powers. Those principles may not be formally articulated in the text of the Australian Constitution, but in our view they are implicit in the constitutional arrangements, and hence we can conclude with the arguments of former Justice of the High Court of Australia, Michael Kirby, who asked—to whom does sovereignty truly belong?