About
the Author
Andrew
Petter was born in Victoria, British Columbia, Canada. He was
educated at Notre Dame University in Nelson (undergraduate), at
at the University of Victoria (Bachelor of Laws degree) and, on
a Commonwealth scholarship, at Cambridge University (Master of
Laws degree). He was the British Columbia Law Society gold medal
winner, having the highest standing in his class at the University
of Victoria.
Petter
was a legal advisor to the Constitutional Branch of the Saskatchewan
Department of Justice and was an assistant professor at Osgoode
Hall Law School in Toronto, Ontario, Canada before becoming an
Associate Professor in the Faculty of Law at the University of
Victoria.
In
the British Columbia general provincial elections of 1991 and
1996, Petter was elected to represent the constituency of Saanich
South in the British Columbia legislature. He served as Minister
of Aboriginal Affairs from November 1991 to September 1993; as
Minister of Forests from September 1993 to February of 1996; as
Minister of Health thereafter until June of 1996; as Minister
of Finance and Corporate Relations and Minister Responsible for
Intergovernmental Relations from June 1996 to February 1998; as
Minister of Advanced Education, Training and Technology and Minister
of Intergovernmental Relations from February 1998 to February
2000 (he was Minister Responsible for Youth for part of that time);
as Attorney General and Minister Responsible for Human Rights
from February to November of 2000; and as Parliamentary Secretary
to the Premier thereafter. Petter did not run in the 2001 provincial
election, and returned to academic life. As of July of 2002, Andrew
Petter is Dean of the University of Victoria Law School.
About the Article
Petter's
"Federalism and the Myth of the Federal Spending Power"
is an in-depth examination of how, in a federal state, a federal
government can free itself from constitutional limitations on
its jurisdiction. Although Petter is discussing the situation
in Canada in particular, his insights transcend Canadian politics
by demonstrating a federal government's willingness to disregard
constitutional limits on its jurisdiction, a provincial/state
government's willingness to allow a violation of its legal rights
in exchange for federal cash infusions, an academic community's
(often politically-motivated) tendency to justify a government's
disregard for jurisdictional limits, and a people's complete lack
of any detailed awareness of the existence or importance of limits
on legislative power in a federal state.
Petter's
topic is the so-called "federal spending power": an
alleged right of the federal government of Canada to spend its
tax revenues on things respecting which only a province can make
laws: e.g., health care, education, and welfare. In Part
I, Petter provides a shocking (and shockingly frank) account
of how the federal government, to gain more effective power to
intervene in the economy and set up the welfare state, managed
to break free of its jurisdictional limitations with the power
of the purse. In Part
II, Petter examines the constitutional arguments in favour
of, and against, the existence of the federal power, and finds
arguments for its existence lacking, or even the product of intellectual
dishonesty (our words, not his). In Part
III, Petter examines the public policy arguments that have
been made in favour of interpreting the constitution such that
the federal government has an unlimited spending power, but concludes
these arguments - like the strictly legal ones - are lacking.
He finds, to the contrary that when a federal government spends
money on provincial matters, the public loses an understanding
of who is to be held accountable (e.g., for underfunding), and
who is to be praised. In his own words: "By
allowing the federal government to use fiscal means to influence
provincial policies, the spending power compromises political
accountability and thereby weakens the ability of electors to
exercise democratic control over Government." In Part
IV, Petter examines the validity of the various political
arguments that the federal spending power is needed to achieve
certain goals, such as equalizing provincial revenues: again,
those arguments are found to come up short. He also explains that
the courts are now unable or unwilling to declare the federal
spending power unconstitutional for fear of social disruption:
he concludes that only a political approach can succeed. Part
V examines constitutional reform, particularly in the context
of those reforms that were proposed in the Meech Lake Accord (which
failed): he warns that, if drafted wrongly, such constitutional
amendments could make things worse by, for example, legitimizing
federal spending beyond legislative competence.
Petter's
article is rare both in its content and in its intellectual honesty.
While other law professors and legal authors are arguably busy
writing articles to excuse federal incursions into areas of provincial
jurisdiction - and quite possibly earning themselves a chance
at an appointment to the Supreme Court of Canada - Petter sticks
to the business of diligently and even-handedly evaluating the
constitutional legitimacy of the federal spending power. Although
he does not hide his social-democrat leanings, he never lets his
politics influence his analysis. Indeed, his opposition to the
federal spending power is mirrored by federal political parties
that do not share his political bent (see, for example, the Freedom
Party of Canada). In providing such a thorough and honest analysis,
Petter does the profession of law, and the people of Canada and
other federal states, a tremendous service.
Mondo
Politico thanks Andrew Petter, and the Canadian Bar Review for
permitting the reproduction of this fine article at Mondo Politico.
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