The point of this enterprise, as I see it, is to revitalize and elevate a constitutional debate that, in my estimation, has gotten bogged down. On the political Left, constitutional theory has to satisfy a vast range of “progressive” policy commitments before it can get a hearing. On the Right, a well-intentioned insistence on interpreting the Constitution one clause at a time has been taken to excess. In the process, it has crowded out a proper and urgent appreciation of the Constitution’s broader purposes—its “genius,” as John Marshall used to say.
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.