Thursday, August 14, 2014

The constitutionality of the prime minister

Constitutionalize these guys?
Andrew Smith links to an article in a journal called Public Choice arguing that societies with higher levels of "trust" have shorter constitutions, and vice versa.  Canada's constitution ranks as short.

A historian may respond by thinking: 1) some political scientists seem to have a lot of time on their hands; 2) there is probably a historical dimension that is not being considered here, that is, more recent constitutions are surely longer than older ones, and that may be due not to declining levels of "trust," but to the ever-growing number of public-policy and constitutional law specialists who want to get their oar in whenever a new constitution is to be drafted. E.g., the Canadian constitution as revised in 1982 is substantially longer than the 1867 one.

He also notes, as evidence that "Canada’s written constitution is silent on some of the most important features of the political system " that the job of prime minister is not even mentioned in the Canadian constitution.  

True, it wasn't, but one might argue that the office of prime minister (and premier in the provinces) does not have a constitutional role and does not rate mention.  The office with constitutional significance is the Governor-General (or Lieutenant-Governor) in Council, i.e., the cabinet. The constitutional functions of the cabinet are very carefully laid out in the British North America Act.  If truly collective leadership were a practical thing, there would be no need for a prime minister at all, so why clutter up the constitution with reference to one?  

One might further note that the 1982 revisions to the BNA Act did in fact constitutionalize the office of prime minister. Sections 35.1 and 49 of the Constitution Act, 1982 each refer to the requirement for constitutional conferences "composed of the prime minister of Canada and the first ministers of the provinces." The constitutional role and function of these first ministers is otherwise entirely undefined. 

But the idea that it was a good thing to make executive federalism and the first ministers' conference (a fundamentally anti-parliamentary process) into constitutional institutions in Canada strikes me more like a symptom of sloppy thinking than of declining levels of public trust. 

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