Notes for a Comparative Study of the Origins of Federalism in the United States and Canada [Article] Item Type Article; text Authors Wroth, L. Kinvin Citation 15 Ariz. J. Int'l & Comp. L. 93 (1998) Publisher The University of Arizona James E. Rogers College of Law (Tucson, AZ) Journal Arizona Journal of International and Comparative Law Rights Copyright © The Author(s) Download date 04/10/2021 18:25:12 Item License http://rightsstatements.org/vocab/InC/1.0/ Version Final published version Link to Item http://hdl.handle.net/10150/659304 NOTES FOR A COMPARATIVE STUDY OF THE ORIGINS OF FEDERALISM IN THE UNITED STATES AND CANADA L. Kinvin Wroth* I. INTRODUCTION In October 1995, Canada stepped back once again from the brink of a political precipice on which it had stood periodically for at least fifteen years. The people of Quebec in a referendum vote narrowly rejected a proposition that would have led to the withdrawal of that province from the Canadian Confederation, of which it has been a member since 1867. Quebec's separatists assert that they will bring this question forward again by the year 2000. If there is a vote for separation, two questions will arise: (1) By what, if any, legal means will the separation occur? (2) What form will the relationship between Quebec and the rest of Canada, including its Aboriginal peoples,' take? The answer to the first question requires an analysis alternatively of the intricate constitutional2 history of Canada and of the complex law and politics of the present situation. The possible answers to the second question range along a continuum from * Dean and Professor of Law, Vermont Law School. This paper is a compilation of informal introductory notes prepared for the historical background portion of the author's course in the Canadian Legal System. The paper is thus very general. It is also a synthesis of a variety of standard historical sources and, thus, its annotation is sparing. The author wishes to express his thanks to Andrea Rau, Vermont Law School, Class of 1999, for her assistance with the annotation. 1. This term is used in this paper as defined in 1 REPORT OF THE ROYAL COMMISSION ON ABORIGINAL PEOPLES xiv (1996) [hereinafter REPORT OF THE ROYAL COMMISSION] to refer generically to all indigenous inhabitants of Canada, including First Nations people (formerly "Indians"), Inuit people (formerly 'Eskimos"), and M6tis people (those of mixed First Nation-or Inuit-and European ancestry). 2. Some of these issues may be resolved soon. In September 1996, the federal government referred to the Supreme Court of Canada the questions whether the Constitution of Canada or international law gives Quebec the right to effect a Quebec secession unilaterally and, if there is a conflict between domestic and international law on this point, which would take precedence in Canada. See In the Matter of Section 53 of the Supreme Court Act, R.S.C. ch. S-26 (1985) (Can.); and In the Matter of a Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec from Canada, as Set Out in Order in Council P.C. 1997-1497, dated the 30th day of September 1996, S.C.C. 25506. See also Canadian Minister of Justice and Attorney General Allan Rock, Statement to the Supreme Court of Canada Concerning a Reference to the Supreme Court of Canada, Ottawa (Sept. 26, 1996). The matter was heard during the week of February 16, 1998. See NEW YORKTIMES, Feb. 17, 1998. As to the reference jurisdiction, see infra note 128. Recent political developments are noted, infra note 133. 94 Arizona Journalof Internationaland ComparativeLaw VoL 15,No. 1 1998 separate and independent national status for Quebec to a super-province role within the present confederation. Arising simultaneously and intertwined with these questions are difficult issues concerning the sovereignty of Canada's Aboriginal peoples in Quebec and elsewhere. From one perspective, Quebec's drive for separation is just another example of a pervasive late twentieth century problem. The end of the Cold War means that existing political entities can no longer count on the common fear of external threats to contain the internal strivings for autonomy of artificially combined ethnic, religious, or geographical elements. But Canada is unique-so far-among nations experiencing these pressures. Canada has existed for more than 130 years under an elaborate constitution that has drawn in part on the experience of the United States and is set in the context of several centuries of the British constitutional tradition. Canada, then, may be a test case for the capacity of established constitutions and a developed system of constitutional law to adapt to and accommodate these centrifugal political forces. This test of Canada's constitution poses these, among other, questions: (1) To what extent has Canada's present constitution been framed to accommodate the French society and culture of Quebec? (2) How effectively and fairly has the constitution dealt with the needs of Quebec and of the Aboriginal peoples? , (3) Can the constitution be adapted or refrained to accommodate those needs? (4) Are problems of this nature resolvable in constitutional terms? This paper seeks to establish the historical foundations for a comparative law analysis of these questions. The paper seeks these historical and comparative roots in two areas critical to the analysis: (1) The locus of sovereignty (including the separation of powers); and (2) the structure of federalism. At the same time, the paper will take an historical look at issues pertaining to Quebec and the Aboriginal peoples as they have been shaped by, and as they may ultimately shape, those key elements of the Canadian constitution. II. COMMON ORIGINS AND DIVERGENT PATHS-1500-1791 Americans are accustomed to the view that our Constitution and laws are directly descended from British sources that in large measure were adapted and modified to govern the new country after the American Revolution. If we are to understand Canada today, we must grasp the common origins-and the divergent paths-of the American and Canadian institutional descent from Britain. We must also look at a very different historical phenomenon-the early and profound impact of French institutions and culture on Canadian history. Notes for a Comparative Study of the Originsof Federalism A. Great Britain: The Imperial Constitution On July 3, 1776, the thirteen American colonies and the eastern portions of what is now Canada were part of a single British colonial empire governed under the so-called Imperial Constitution and a complex administrative system grounded in that Constitution. The Canadian Constitution evolved after 1776 as part of the continuing evolution of Great Britain's Imperial Constitution and the administrative system that implemented it. By contrast, the American Declaration of Independence of 1776 and the United States Constitution and Bill of Rights as drafted and adopted between 1787 and 1791 were a revolutionary reaction to the failures of the Imperial Constitution and Britain's administrative system. The eighteenth century Imperial Constitution was a creature of English law that still carried strong indicia of its roots in the feudal property law of the Middle Ages. The Imperial Constitution combined three basic elements of the domestic English Constitution in a mix that differed significantly from the domestic model. The basis of English authority in the colonies was the royal prerogative, the independent legal and political power of the King that, within the realm, had been significantly limited by Parliament in the settlement that resulted from its various bloody and bloodless confrontations with the Stuart kings during the seventeenth century. Though the colonies were in form administered by the King under the prerogative, Parliament, through both its legislative supremacy and its political control of the King's ministers, had a significant role in colonial governance. Whether and to what extent the common law applied in the colonies was a subject of continuing debate, but the English common-law courts played a constitutional role in defining the scope of the prerogative when that issue arose in litigation within the realm. 1. The Prerogative The royal Vrerogative was originally synonymous with the feudal powers of the King. After 1066, the Norman conquerors of England under William I and his successors established the centralized fiscal, administrative, 3. See generally J.H. Goebel, The Matrix of Empire, in J.H. SMITH, APPEALS TO THE PRIVY COUNCIL xiii-lxi (1950). For an accessible summary of the English feudal system, see J. H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 255-79 (3d ed. 1990). The generic term for the British head of state in modem parlance is "Monarch." The term "Crown" refers to the entire executive, including the Monarch, the cabinet and other ministers, the bureaucracy, and the armed forces. See D.C.M. YARDLEY, INTRODUCTION TO BRITISH CONSTITUTIONAL LAW 37-38 (4th ed. 1974). In this paper, "Crown" is used in a more general, historical sense to refer to the King or Queen acting with the ministry in an executive role under the prerogative. 96 Arizona Journalof Internationaland ComparativeLaw Vol. 15, No. 1 1998 legal, and social structure that became English feudalism. 4 In this system, the King was the ultimate feudal lord under whom all tenure was held. The King as feudal lord made major grants to his tenants in chief, the barons of the realm, as well as many minor grants to others. He also held some lands as feudal lord directly for his personal benefit. As an incident of feudal lordship, the King was the source of the administration of government and justice for his tenants in chief and, through them, for all subjects.5 The concept and scope of the prerogative in the domestic English Constitution evolved from the feudal model as a body of common-law doctrine that at first defined, and then limited, the powers of the King.