Wednesday, May 26, 2021

Book Notes: Macfarlane on Senate reform

I asked UBC Press for a copy of Emmett Macfarlane's new book Constitutional Pariah: Reference re Senate Reform and the Future of Parliament fearing the worst. Books about the Senate frequently have me rolling my eyes, books by political scientists in particular.

This one's actually pretty good.  

Macfarlane has grasped, as did the Supreme Court in 2014, that an elected Senate, or one appointed by the provinces, is a terrible idea.That's always a good start -- indeed, the essential precondition to saying worthwhile things. Furthermore, his book provides a clear and vigorous account of the last few decades of debates over the Senate, particularly the 2014 reference to the Supreme Court about what changes Parliament can make to the Senate without seeking constitutional amendments.  

It turns out that Macfarlane has inside testimony here. He describes (has this been reported before?) how he was consulted about Senate reforms by then opposition-leader Justin Trudeau. Macfarlane advised Trudeau -- before Harper's reference to the court -- to consider committing to the appointment of non-partisan senators. (He assumes others were consulted, is modest about his own influence, and emphasizes it was a professional consultation, not a partisan contribution.) 

The book repeatedly declares that Trudeau's decision to create a non-partisan Senate produced "the most significant reform of the Senate, perhaps of Parliament itself, in Canadian history." He argues that the new and increasingly non-partisan Senate has been working pretty well, and has a good chance of getting better as times goes on.

The Senate, actually, is only one of two concerns of the book, the other being the Supreme Court's ideas about the constitution. Macfarlane makes a case that the Supreme Court's declaration that parliament cannot make even minor (possibly "housekeeping") changes without constitutional amendment sets too high, indeed too paralyzing, a standard. And he considers that the court's stress on discerning the "architecture" of the Constitution sets a fuzzy principle that gives too much latitude to the judges. I thought that was the best part of the reference decision -- but he's the constitutional scholar, and he may have something here.

Some historical quibbles. He declares a parliament without a upper house was "inconceivable" to the confederation makers, but future prime minister Alexander Mackenzie argued for just that in the confederation debates of 1865. George Brown's reply -- that by making the senate appointive by the federal government he had pretty much secured what Mackenzie wanted -- could give Macfarlane a valuable clue to what the confederation makers were thinking at the time.

For Macfarlane still struggles to determine just what the overarching purpose of the Senate (partisan or non-partisan) really is, and he criticizes the Court for failing to address that conundrum. Is it defending provincial or regional interests? Or holding the Commons to account? Or protecting minorities? Or what? Actually, the judges seemed pretty clear on that question. The only overriding requirement of the Senate for 150 years has been that it be weak. Our punditti still have a blind spot about that, I fear, and the court's message has not yet sunk in. 

Close readers of my own constitutional histories will grasp that I agree with Macfarlane, and with the Supreme Court, when their arguments sustain ideas I had put forward previously, and not when they don't. But since neither cites me, I won't be held responsible. 


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