The Fog of Constitution-making

From a Canadian perspective, America looks a wee bit like a unitary state and not a federal country. In Canada, provinces can opt out of the Charter of Rights, Quebec has its own immigration policies, and so on.

Remember Trent Lott? He belonged to something nasty called the Mississippi Sovereignty Commission. Sovereignty… The word gave me pause. I turned to the web site of my native province to see how it described Canadian federalism. What it said was that Canada was a federal country and that provinces were sovereign within their sphere of competence, as defined by the British North America Act. That wasn’t a partisan issue either. At the time the province was governed by the New Democratic Party, which is sometimes said to be socialist but which in reality occupies about the same turf as the American Democratic Party (minus the corruption). I then turned to the State of Mississippi website and, clicking on a link that said “Federalism,” was directed to another link for “Federal resources available to Mississippi residents.” So much for Mississippi’s sovereignty.

The constitutional history of the two countries illustrate the fog in which we live when we seek to predict the future. The Framers of the American Constitution expected that their national government would be dominated by the states. They’d likely appoint presidential electors, and when a presidential candidate failed to win a majority of the electoral votes (as would nearly always happen, they thought), the election would be decided by the House, voting by state. But over time all of this was turned upside down and the national government became much stronger than the states.

Canada had the opposite experience. The British North America Act was prepared in the midst of the Civil War, and the Fathers of Confederation sought to avoid what they saw as the excessive grant of states rights in America. And so they adopted Madison’s national veto, giving the federal government the power to disallow provincial laws.

Again, however, that’s not how it turned out. The disallowance power was almost never used, as the political costs of overturning the democratic choices of provincial voters was simply too great. The Privy Council in London also helped, by expanding provincial powers over “property and civil rights” under BNA § 92(13).

There’s a story here. When appeals were taken from the Canadian Supreme Court to the Privy Council, soon after Confederation in 1867, the provinces retained the services of a freshly minted barrister, one who had recently emigrated to Britain. He was very sympathetic to the provinces and refused to accept briefs from the federal government in Ottawa. His name was Judah P. Benjamin. Of him it was said that, having failed to persuade one country to adopt the doctrine of states rights, he succeeded with a second.

F.H. Buckley is a Foundation Professor at George Mason School of Law and the author of “The Once and Future King: The Rise of Crown Government in America” (Encounter Books, April 8, 2014).

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Comments

  1. Kevin R. Hardwick says

    It is hard to imagine the current US regime absent the first World War. Growth in power and central authority of government is pegged, largely, to war, and the big expansions of US central government power coincide to large extent with the exigencies of war.

    The framers, or at least one faction among them, emphatically did not want powerful state governments. This was for many reasons, but ultimately many of them were grounded in security. Loose confederations wage war less effectively than do stronger and more centralized ones.

    Here, the experience of the Confederate government is instructive. Faced with the demands of fighting a war, and with the manifest reality that the Confederate constitution gave far too much power to the state governments for the central government efficiently to defend the country, the states steadily responded by granting enhanced power to the central government. Thankfully this was too little too late, but the larger point remains–loose confederations have difficulty performing one of the most basic functions of government, extracting resources to raise and coordinate the deployment of armed force. Madison’s historical studies and analysis in 1787 and 1788 turn out to be correct.

    So if we want to compare and contrast the success of US and Canadian regimes, we have to bring into the analysis the respective military histories of the two countries.

  2. gabe says

    Kevin:

    Absolutely!!!
    “…we have to bring into the analysis the respective military histories of the two countries.”

    I would add that one need look at the effect of WWII on the scope of American centralization AS WELL AS the cold War which was financed / conducted primarily by the United States.
    Europe and Canada were thus free to “explore” other options – one of these was an ability to NOT further centralize as we would both centralize and pay the freight.
    When one gets a free ride, one can easily fall into the “loose confederation” of which you speak. There is simply no need to strengthen the center as the US will provide cover (and or sufficient time for you to prepare) should the proverbial material come in contact with the fan.

    BTW: Finished Robertson’s “original compromise” – clearly the Framers were concerned about a too strong confederation and the potential for foreign adventurism as you argue.
    His book strikes me as something that would be a fine primer for undergraduates – do you use it as such?

    take care
    gabe

  3. gabe says

    Prof. Buckley:

    BTW: Just started your book – promises to be interesting and thought provoking. Tell the “masters of LLB” that they should keep you on for a tad bit longer. I do enjoy your posts – don’t necessarily agree with all of them but they are of some interest.

    take care
    gabe

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