Public Choice 44:279-283 (1984), © 1984 Martinus Nijhoff Publishers, Dordrecht. Printed in the Netherlands.

On the analysis of constitutional change in Canada

Comments on the Breton and Courchene papers

MARK SPROULE-JONES*

One of the more important questions to ask about constitutional ar-

rangements, and about their design and redesign, is "What are they

intended to do?" These questions were barely raised in the 15-year

round of constitutional debate culminating in the new Constitution Act

for Canada. The inf luential actors in this debate, the Prime Ministers

of the Federal and Provincial Governments, were more concerned with real

politic, the accumulation of power in Ottawa or the ten Provincial capi-

tals. The Breton paper also eschews such fundamental questions with the

curious result that the theory in his paper is a theory about authori-

tarian rule. Courchene, in an equally stimulating paper, albeit one of

narrower focus, raises implications at the end of his paper for such

fundamental questions, but he does not extend his arguments about an

appropriate constitutional and insti tut ional framework. One is le f t

perplexed about the normative thrust of his theorizing.

Theoretically, Breton attempts to "stand Hobbes on his head."

Hobbes' State was based on a social contract in which benefits were

conferred on society, especially peace and security, in exchange for

*McMaster University

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obligations to a sovereign authority. Breton's State is based on an

implicit contract in which society avoids costs in the use of force in

exchange for which i t confers trust and legitimate power on insti tut ions

and of f ic ia ls . No arguments are advanced for this "cost-avoidance

social contract."

Breton is also prepared to " t i l t Hobbes sideways" in that a sub-

sidiary theoretical proposition is that the magnitude of trust developed

in government can be increased by both effective government and by

constitutional arrangements perceived as just and fa i r by society. The

issue of whether effective government, and just and fa i r constitutional

arrangements, are consistent with a cost-avoidance social contract, is

ignored.

Two other key theoretical propositions are advanced, one contro-

versial and one well-accepted. The f i r s t is that the distr ibution, as

opposed to the magnitude of trust in government, rests, in a federal

structure, on the distr ibution of powers between national and regional

governments. The reason advanced is that the governments can manipulate

levels and distr ibution of trust through their i n i t i a l assignment of

powers. This proposition appears to be an inductive one. In Breton's

view, the codification of a Charter of Rights in the 1982 Constitution

represents one way in which the Canadian Federal government altered the

distr ibution of trust amongst Quebecois between their national and

provincial governments. One wonders nevertheless about the distr ibution

of trust when the use of force under the in i t i a l assignment of powers is

so asymmetrically distributed in favor of the Canadian Federal Govern-

ment. The distr ibution of trust, as well as i ts magnitude, may not be

consistent with the cost-avoidance model.

The noncontroversial theoretical proposition is that a national

government is less l ikely to engender trust than are regional govern-

ments given a heterogeneous population and a "~atural sorting out of the

population according to preferences, somewhat a la Tiebout" (p. 267).

On a more substantive level, Breton ( l ike Courchene) overemphasizes

the importance of the changes in the Brit ish North America Act included

in the now t i t led Constitution Act. First, the new Act is only part of

the Constitution, in the sense of an expl ic i t formulation of the rules

under which pol i t ical authority may be exercised by public o f f i c ia ls .

No change was made in the forms of government used at provincial and

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Federal levels. I t is s t i l l possible to ta lk about the Government of

Canada or the Government of Newfoundland, etc. Governments may s t i l l be

viewed as a "team," displaying a (public) single and consistent vector

of preferences, a resul t of the incentives for mass discipl ined part ies

from the ins t i tu t ions of parliamentary government. I t is also s t i l l

possible to f ind the const i tut ions of Provincial Governments scattered

in various Provincial statutes, l ike the "Legislat ive Act" and "Execu-

t i ve Powers Act" of Quebec or the "Consti tut ion Act" of Br i t i sh Columbia

(Sharman, 1984).

What took place in 1982, was the patr ia t ion of only one part of the

const i tut ional rules, a new amending formula for most of th is part , and

a nat ional ly uniform and entrenched Charter of Rights. No wonder most

Provincial po l i t i c ians were unconcerned about the f i r s t , guarded about

the second, and generally host i le to the th i rd .

Furthermore, a close reading of the actual Charter shows how a l l

Governments (excluding Quebec) would eventually agree on a Charter. The

1867 BNA Act entrenched some issues - the use of English and French

(Section 133), separate schools (Section 93), annual sessions of Parl ia-

ment (Section 50), representation by population (Section 51), and an

independent jud ic iary (Section 99). The new Charter does not guarantee

the r ights and freedoms set out . . . subject only to such reasonable

l im i ts prescribed by law as can be demonstrably j us t i f i ed in a free and

democratic society (Section i ) . Most of the guaranteed r ights and

freedoms can be l imited by statute of f ive-years' duration unless ex-

pressly re-enacted. This is the infamous "notwithstanding" section

(33). The only r ights and freedoms not subject to the "notwithstanding

section" appear subject to Section i (Section 15 and the so-called

Democratic r igh ts ) . In other words, the Governments were able to agree

on the most important value to them - the primacy of Parliamentary

Sovereignty (Sproule-Jones, 1983).

In view of the modest nature of the changes of 1982, i t is d i f f i -

cu l t to appreciate Breton's empirical statements about the manipulation

of the levels and d is t r ibu t ion of t rus t . The Consti tut ion s t i l l allows

the Federal and Provincial Governments to operate co l lec t i ve ly , often to

the exclusion of th i rd part ies.

Courchene senses th is problem in his concluding theoret ical re-

marks. The new Consti tut ion remained (almost) s i len t on removing i ns t i -

282

tutional constraints on economic union. The Federal Government withdrew

i ts proposals in the face of a loss of Provincial powers in the f ie lds

of taxation and expenditures. These powers can be exercised in ways

antithetical to national economic growth. The fact that they were

withdrawn in the constitutional bargaining process indicates the extent

to which both levels of government can agree on matters to the exclusion

of third-party (public) concerns.

Courchene is reluctant to push this theoretical concern farther.

He provides a wealth of descriptive information on the constitutional

bargaining over economic union, but he interprets this information in

terms of i ts centralizing and decentralizing impacts on the powers of

the two levels of government. These are concerns central to the

o f f i c ia ls of both levels, but not necessarily to the concerns of third

parties. One result is that his arguments possess a normative thrust in

favor of the existing constitutional arrangements. Arguments and evi-

dence about the limited exercise of provincial barriers to free trade,

about the costs of removing such barriers, and about the economic con-

straints on the use of barriers -- a l l reinforce this thrust. There

appears to be an important normative inconsistency in Courchene's

theory. One is forced, as with Breton's paper, to raise again the

fundamental issue - What is the nature of a good constitution?

283

REFERENCES

Sharman, G.C.

(1984) The Strange Case of a Provincial Constitution: The British

Columbia Constitution Act, Canadian Journal of Political

Science, Vol. 17, No. 1, 87-108.

Sproule-Jones, M.H.

(1983) The Enduring Colony? Publius (forthcoming).