History of democracy in the United States

Last Tuesday's American elections were a delight. Horrible people defeated.  Texas turned blue. Election-stealing loses to voter tsunami. 

But the constitutional problems of the United States remain enormous

• The House of Representatives:  The gerrymandering of constituencies for the United States House of Representatives is so deeply engrained, so accepted, and so excused by the American public, that it seems impossible to fix.  Yes, the Democratic Party has expressed support for independent districting, and the longstanding Republican refusal to take part is a serious part of the problem.  But surely the deep and long tolerated corruption in how the representative house is constructed leads to other, deeper corruptions that go unchecked.

• The Senate.  Upper houses are always created to rein in the democratic impulses of the lower, more representative house.  As a result, modern upper houses in most countries are either limited in power, or properly representative.  (See Canada, where appointment of senators ensures they lack the legitimacy to threaten the superiority of the lower house.)  But the American Senate is both extremely powerful and extremely unrepresentative -- a different kind of gerrymander, but this time a constitutional corruption, and therefore even more effective in blocking the will of the people.  And apparently quite unfixable.

• The Presidency.  There is an Electoral College because....? (The reasons are too bizarre to follow.) But the consequence is that even in a two-candidate presidential election, there is every reason to fear that in a close election the the election will not go to the people's preferred candidate.  Again the legitimacy of a fundamental process is corrupted.

• The Supreme Court.  The ease with which a few Republican presidents could stack the court with partisan supporters has produced a complete corruption  of much of the judiciary. Again: highly resistant to a fix, and surely tempting the other party to take similar steps in self-defence when it can.

With such institutional corruption, is it any wonder that someone managed to game the process -- and promptly add a layer of personal corruption as well?  Trump will go, but what rough beast will come around next, through these bypassings of legitimate governance.

Imaginary problems of Canadian constitutional history

Emmett Macfarlane, in his SubStack "Defending Canadian Democracy" declares "It's time for a centralization movement in Canada."

I approve of a lot of what he argues. Except I'm not sure that "centralization" is or should really be what he's hoping for. As he says:

By a ‘centralization movement’ I do not mean we should be uploading more responsibilities to the federal level. 

"What we need" he says, "is to start championing the federal role." And even more, what we really need to do is give a firm slap upside the head of the provinces: 

Provincial governments routinely engage in buck-passing and blame-avoidance, attempts to pin responsibility on the federal government for matters under their own jurisdiction. From the deteriorated state of their health care systems to the housing crisis  [education too, he might have said], provinces demand federal action (and especially money) all while simultaneously decrying any attempt by the federal level to put in place conditions to ensure the money is spent on those areas.

So far, I'm all with him 

Where he goes wrong is in going to the constitution, and particularly by signing on to the hoary old theory from the 1930s that the evil Judicial Committee of the Privy Council (for some crazy and never persuasively explained reason) decided early on that power in Canada had to be radically decentralized from its supposedly Ottawa-centric original form, and therefore rewrote the British North America Act into a mandate for extreme levels of provincial power. 

I can't see this. 

Broadly, the JCPC, instead of being conned by the centralist propaganda of John A Macdonald, was right on the division of powers. The JCPC judges understood that the constitution of 1867 had indeed given the provinces lots of powers -- and kept Ottawa from vetoing the exercise of them. Sure, the JCPC often supported the provinces against Ottawa, just as it often ruled against Westminster when it attempted to intrude on Canadian control of Canadian matters. But it's a federalist constitution in its bones, it did not need the JCPC to invent federalism.

We don't need to "recentralize" the constitution -- it never was. And we don't need to encourage the Supreme Court of Canada to wade in. The problem ain't the constitution. It's fine. What we need to do -- and in fact this is mostly Macfarlane's argument -- is remind the provinces constantly that they have big responsibilities as well as big powers, and punish their governments when they fail to step up.

When our health systems start to fall apart, we need to hold our provincial governments responsible. They are the ones failing to maintain them; they deserve the blame.  Same with housing. Same with education. 

If provincial governments will act (as is and always has been their constitutional right and duty), federal funds will flow. These areas have always been provincial jurisdiction -- but the provinces need to take the lead. (Indeed in some cases they might usefully compete among themselves for which could come up with the best solutions to the problems of health, housing, education, and ....)

Let me be clear: I mostly agree with Emmett Macfarlane, and particularly when he declares:

It is time to start calling out a lot of provincial grievance for the rank bullshit it often is. For too long we have put up with a federalism in which provinces act like the whiny, selfish crybabies of Confederation.

But he's missing the point and muddying the waters when he blames the JCPC for our problems. The constitution is fine. Let's focus on declaring that the provinces have lots of powers -- and need to start taking up the responsibilities that go with them.  Right now let's blame the provinces for failing us on health care, and schools, and housing.

Tommy Douglas as premier of Saskatchewan didn't whine about federal underfunding of health services. He went out and invented medicare using the powers all the provinces already had, and the feds took it national by ponying up the cash. We need a premier or two to act like that. Just keep away from constitutional tinkering!