The Spending Power: Cooper v. Crowley

Is the spending power legal? We have a debate going on this blog. Barry Cooper contends that federal governments are acting illegally when they fund public projects in areas of jurisdiction reserved to the provinces in the Constitution Act (1867).

(Think about it. Should the feds be paying into provincial health schemes? Should they be funding those Canada Research Chairs? According to the Constitution, “health” and “education” are provincial matters.)

By spending in areas of provincial jurisdiction the federal level of government is intolerably meddling in provincial affairs, eroding the 1867 Constitution and impairing principles of political accountability that are the pride of parliamentary systems. That’s Cooper’s view. See last week’s blog, “The Spending Power: Explain!”

Brian Lee Crowley begs to differ. He has entered an invaluable comment on last week’s blog. “Ottawa uses the spending power to make gifts (with or without conditions attached) to people or organizations or provinces, something one can reasonably argue is not excluded by a distribution of legislative powers.” (My emphasis.) To repeat: while the Constitution Act (1867) does not allow the federal government to legislate in provincial fields, it does allow gifts of money to provinces. Thus we conclude that the spending power is legal.

Instead of getting exercised about the spending power, says Crowley, Canadians should be using regular political channels to demand better performance from both levels of government.

So, that’s it. Pick your pick and choose your choice.

I’ll add that in their formulation of the division of legislative powers for the new federation, the Fathers of Confederation advocated what later comes to be called the doctrine of “watertight compartments.” (That’s not their term; but it’s what they meant. The term was used by and was perhaps invented by the British Law Lords.) The notion of watertight compartments clearly prohibits the federal level from legislating in provincial fields. The question is whether it also prohibits spending in provincial fields. (Where is Alexander Galt when you need him? In the history books. I should get back to work.)

Here’s one document that provides a clue:

In a letter of 1858, marked “private and confidential,” and intended for the perusal of officials at the Colonial Office, Tories in the Province of Canada roughed out a list of the powers to be allowed “the Federal Government” in the event of British North American union. To it they appended this observation: “the Local Legislatures [the provinces] would not be in a position to claim the exercise of the same sovereign powers, which have frequently been the cause of difference between the American States and their General Government.” Much could be said about this statement, but it does indicate that the letter writers (among them Cartier and Galt) were watching the American experiment closely, and had concluded that a muddling of powers threatened in federations and was to be avoided.

Consider also that in the debates on Confederation in the Legislative Assembly of the Province of Canada, George Brown and George-Étienne Cartier argued at length that the general government of the federation should legislate only on matters of equal concern to each and every individual in the union; the general government, the Parliament of Canada, was to be neutral; it was to take no interest in the particular citizen’s “race,” country of origin, religion, history, etc.

Brown and Cartier would be appalled by the idea of a department of multiculturalism at the federal level. They would be horrified at the sight of today’s crowd of particular interests besieging Parliament for group preferences, distinctions, and money, money, money.


2 Responses to “The Spending Power: Cooper v. Crowley”

  1. 1 Christopher Moore September 11, 2009 at 10:57 am

    Janet, would “that letter of 1848” be a letter of 1858? There were no Tories in power in the Province of Canada in 1848, I think, thanks to responsible government and the election of late 1847. And even in 1864-7 they did not make the running alone.

    Much as I like to see debate on your site, I think Crowley just won this one conclusively.

  2. 2 janetajzenstat September 11, 2009 at 12:10 pm

    Thanks Chris. Grateful. Yes, I am referring to a letter of 1858. It can be found in G.P. Browne, Documents on the Confederation of British North America (Carleton, 1869, pages 17-19: G.E. Cartier, J.J. Ross, and M. East [A.T. Galt] to Sir Edward Bulwer Lytton, 25 October, 1858.

    It’s the missive that Peter Russell makes so much of in his Constitutional Odyssey, Can Canadians be a Sovereign People? See the first sentence of Russell’s Chapter One. (I quarrel with Russell’s interpretation in Ajzenstat, The Canadian Founding, John Locke and Parliament, pages 28-33).

    Blog Reader Alert: Christopher Moore is the author of the supremely readable and invaluable volume, 1867, How the Fathers Made A Deal (McClelland and Stewart). And see his own blog site: Christopher Moore’s Canadian History. He iis currently reporting daily from the front lines at the Plains Abraham.

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