Saturday, October 24, 2009

Live blogging the Quebec conference #15

Monday, October 24, 1864:

They zipped through the list of federal powers a couple of days ago. Today Oliver Mowat of Ontario moves the resolutions on the provincial powers. The provinces get: agriculture, education, emigration, sale and management of public lands, property and civil rights, municipal institutions, inland fisheries, penetentiaries, hospitals and charities and eleemosynary* institutions, local works, the administration of justice and the constitution and the courts, local offices and local officers, direct taxation, borrowing on the province's credit, licensing of shops and saloons and taverns and auctioneers, and "private and local matters," soon to be rephrased "generally all matters of a private or local nature."

It will become a Canadian historical tradition that the constitution-makers were centralizers determined to make the provinces distinctly minor and secondary. But this is a pretty impressive range of powers: not just agriculture (though the feds also have authority here) and hospitals and education, but also the administration of justice and local government and local business. The provinces take ownership of crown lands. They will control property and civil rights (though civil rights was generally understood to mean matters of private law such as contracts and the right to sue and so on, rather than freedom of speech and the other personal rights we call civil rights.) They have taxation powers ("direct" mostly means property taxes) Then there is that residual clause. How much authority can be gathered up under "generally all matters of a private or local nature"? Link this to the confirmation that provincial governments will be responsible governments (that is, accountable to elected legislatures) and it's hard to deny that they are conferring a lot of power on the provinces.

They barely get started on a point-by-point discussion today. Instead, they get into a discussion of whether provincial powers should simply be all those not specifically granted to the federal government -- or the reverse, and this leads into discussions of what's wrong with the American constitution, and much else. More on the provincial powers tomorrow. One notable point: they do seem to foresee that future disputes over the constitution will be subject to judicial, not just political, review. A couple of delegates specifically refer to a Supreme Court for such matters.

* Eleemosynary = just a big word for "of or pertaining to almsgiving,charitable."
Follow @CmedMoore