What to Make of the Constitution

I have written a post on the Senate Reference hearings for I-CONnect, the blog of the International Journal of Constitutional Law. In large part, it follows up on and develops some of the ideas I had in my first impressions post last week, with a bit more context. I am cross-posting it below.

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Over the course of three days last week, the Supreme Court of Canada heard submissions from the federal government, the ten provinces, two territories, two ami curiae, and several interveners on the constitutionality of the federal government’s proposals for reforming the unelected upper house of the Parliament of Canada, the Senate. Beyond the obvious importance of possible Senate reform, which has been discussed almost as long as Canada has existed, this case is potentially of great significance because it is the first time the Court considers the meaning of Part V of the Constitution Act, 1982, which includes Canada’s plethora of procedures for constitutional amendment.

The questions the Court is called upon to answer concern four possible reforms. First, the limitation of the terms of a senator’s office, currently held until a retirement age of 75, to a fixed number of years (possibly 9 or 10) or to the life of two Parliaments (about 8 years under normal circumstances, but shorter in the case of minority governments). Second, the creation of a system of consultative elections to be held in the provinces that desire it, the winners of which the Prime Minister would be required to “consider” recommending to the Governor General for appointment to the Senate. Third, the removal of the “property qualification” of $4000 to hold senatorial office, a considerable sum in 1867, meant to ensure the Senate’s position as the House of privilege, but by now a somewhat comical relic of an age long gone and little lamented. And fourth, the outright abolition of the Senate.

The first three of these reforms, the federal government argued, could be implemented by Parliament acting unilaterally, either under s. 44 of the Constitution Act, 1982 (for term limits and the property qualification) or under the residual “peace, order and good government” power of s. 91 of the Constitution Act, 1867 (for consultative elections). As for abolition of the Senate, the federal government took the position that it could be done under the “general” amending formula of the Constitution Act, 1982, requiring the consent of 7 provinces representing at least 50% of Canada’s population (the “7/50 formula”). Most provinces, as well as the interveners, however, are of the view that the instauration both of term limits and of consultative elections can only be done under the 7/50 formula, and that abolishing the Senate requires the provinces’ unanimous consent.

Legally, the reasons for these disagreements come down to differences over the proper way of interpreting Part V of the Constitution Act, 1982. Part V applies to changes to “the Constitution of Canada,” and provides several different amending formulae, ranging from unilateral action to agreement between the federal Parliament and all the provinces, depending on the subject of the proposed amendment. The trouble is that the subjects singled out for special amending formulae are described in confusing terms, making it unclear under which provision of Part V a proposed amendment falls. But the confusion goes even deeper, because the very definition of “the Constitution of Canada,” to the amendments to which Part V applies, is unclear and incomplete.

Over the course of arguments before the Supreme Court, there emerged three interpretive approaches that the Court might adopt. The federal government’s preferred approach is―its denials notwithstanding―literalist. On this reading, the “powers of the Senate” entrenched by s. 44 do not include any senatorial independence that might be compromised by shortened term limits. The expression “method of selecting senators,” in the same provision, refers only to the formal appointment by the Governor General, and not to the fact that Senators are understood to be appointees lacking electoral legitimacy. And, since the list of constitutional changes requiring unanimous agreement of the provinces in s. 41 of the Constitution Act, 1982, does not specifically mention the abolition of the Senate, it does not cover it.

A second approach, championed by Québec, might be called originalist, in that it focuses on preserving the bargain struck at confederation in 1867. The Senate was, all agree, a central element of that bargain, so it is not to be touched without the consent of the parties to that bargain―that is to say, the provinces as well as the federal government. And even if some of the expectations of these parties, such as those regarding senatorial independence, have not been fulfilled, they must be upheld “regardless of reality.”

Most provinces, however, as well as the interveners and the amici curiae, urged the Court to take what was often described as the “living tree” approach, focusing not so much on the words of the constitutional text or the historical compromises that gave birth to it as on what matters most for its present and future operation. So the “method of selecting senators” is not only the part of the selection process described in the constitutional text (i.e. the appointment by the Governor General); “the powers of the Senate” include its independence, whatever exactly that might be (since it is clear that the Senate is, in fact, a political, partisan body); and the requirement of unanimous consent applies not only to the changes listed in s. 41, but also to other fundamental changes to the constitution.

In reality, however, interpretive approaches are not so neatly distinct. In what an intervener described as a dangerous application of the living tree approach, the federal government urged the Court to allow Parliament to bring the Senate into the 21st century, and not to require unrealistic levels of political agreement, condemning the country to another “135 years of talks.” Conversely, those opposed to the federal government’s proposal made much of the fact that the abolition of the Senate was simply not contemplated when the amending formula was being drafted in 1981, arguing that this, rather than the relative unimportance of such a change, explained its conspicuous absence from s. 41. As a bemused Justice Rothstein put it to Manitoba’s lawyer, “whatever works?” “Welcome to the law,” she replied.

What works, and what doesn’t, are questions that will weigh heavily on the Court’s collective mind. What works with an amending formula which, although drafted merely a generation ago, seems to reflect a very different country than the one in which we now live? A country where constitutional negotiations were not being described as the opening of a “can of worms,” and where agreement on substantive constitutional change seemed within reach; a country much preoccupied by the then-Prime Minister’s suspected republicanism, but not all by the prospect of the abolition of the Senate; a country that thought nothing of ruling its northern territories like colonies, and its First Nations like subject peoples, whose views on constitutional change could safely be ignored. What sort of authority can a constitutional text drafted under such circumstances have? Yet saying that this text is insufficient to meet the needs of today―never mind those of the years and decades to come―only forces one to confront the question of what sort of authority the Supreme Court has effectively to re-write it.

Yet the Supreme Court of Canada has not been shy about intervening in constitutional reform in the past. It stopped possible Senate reform in its tracks with the in 1979, prevented unilateral Patriation of the constitution in 1981, and ruled that a unilateral secession of Québec would be illegal in 1998. In none of these cases was it relying on explicit constitutional provisions. In all of them, it ruled that constitutional change required a broad agreement between the federal government and the provinces, and could not result from unilateral action. Although it is, of course, dangerous to make such predictions on the basis of questions asked at oral argument, insofar as it concludes that Part V of the Constitution Act, 1982 does not clearly reflect this preference for consensus, the Court did not seem very likely to heed the federal government’s call for it not to treat the constitutional text as a mere “suggestion box.”

First Impressions

I will have more structured and fuller thoughts in the next days, but here are some initial impressions, in no particular order, of the Supreme Court’s hearings on the Senate Reference, almost all of which I watched.

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This case is, of course, largely about constitutional interpretation. (Much more so, in fact, than most constitutional cases in Canada, certainly much more than the many Charter cases where the constitutional text is barely alluded to.) Now, in Canada, we often think of constitutional interpretation as involving a choice between two options: the “living tree” approach on the one hand, and something like originalism on the other. But the arguments in the Senate reference suggest that there are, in fact, at least three different approaches: the living tree, which most provinces invoked; originalism, in the sense of giving an overriding importance to the bargains that made confederation possible, which was Québec’s preferred approach; and literalism or textualism, which is the federal government’s. In reality, things are even more complicated, because the provinces also rely on constitutional structure, and the amici curiae focus primarily on it. And provinces, despite their invocations of the living tree, don’t hesitate also to appeal to the original bargain. In the funniest exchange of the three days, Justice Rothstein summed it all up as “whatever works,” to which Heather Leonoff, Manitoba’s lawyer, replied: “Welcome to the law!”

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Speaking of the lawyers, it’s a tough job they had. None more so than Nancy Brown, for British Columbia, the first to argue yesterday. She was, perhaps, a bit slow to get into the substance of her argument ― as all of her colleagues who preceded her, none of whom could resist the temptation of reminding the court of the historic significance of the case, had been. As Ms Brown was speaking of the importance of confederation, the Chief Justice snapped that the Court had already heard about it many times, and demanded to be told something “new.” The Chief Justice achieved what I suppose was her aim ― the lawyers who went after Ms Brown focused and shortened their arguments, trying not to repeat too much of what others had said before. But I had the impression that Ms. Brown was somewhat thrown off course by the Chief Justice’s comments, and that it was not very fair to take the court’s (admittedly understandable) frustration out on her in this way.

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Not everybody had such a hard time, though. The academics involved ― Sébastien Grammond, the Dean of the Civil Law Section at the Faculty of Law of the University of Ottawa, was impressive in his argument for the Fédération des communautés francophones et acadienne du Canada, and McGill Law’s Dean Daniel Jutras, even more so. (I’m biased, of course, as an alumnus!) Dean Jutras’ fellow amicus, John Hunter was very good as well, though the Court gave him a hard time. But perhaps the most impressive performance was that of Senator Serge Joyal, who intervened and represented himself. It is often said that a lawyer who represents himself has a fool for a client, but Mr. Joyal is no fool. He spoke with both emotion and intelligence, and brought insights to the Court which the judges had been looking for (about the pre-Patriation constitutional negotiations, in which he was very much involved). Indeed, Mr. Joyal, I think, is precisely the sort of person of whom the Senate was meant to consist. Too bad there are not more of them there.

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As for the best moment involving a judge, it came this morning when Justice Cromwell asked Mr. Hunter, who was arguing that the federal government’s plan to institute purportedly non-binding elections to choose persons whose appointment to the Senate the Prime Minister would have to “consider” did not entail a modification of the constitution, whether the government could, instead of elections, auction off Senate seats ― provided the auction was non-binding. (Mr. Hunter initially resisted, but eventually conceded this would be possible, subject of course to an eventual judgment of the voters. Not a great moment, I think, for the position he was supporting.)

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This brings me to way this will go. The federal government is in trouble. It is, of course, dangerous to make predictions based on hearings, but I have a strong impression that the Court ― all eight judges ― was skeptical of its position. The questioning both of its lawyers and of those who supported its position (as Alberta and Saskatchewan largely did, and Mr. Hunter did in part) was tougher than that of its opponents. Especially issue of the abolition of the Senate, I would be very surprised indeed if the Court were to endorse the federal government’s view that it could be effected without the unanimous consent of the provinces.

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If that is right, however, the Court may well ― though perhaps it will not ― more or less re-write the Constitution Act, 1982. The constitutional text does not, after all, mention the abolition of the Senate, which would at first glance suggest that the federal government’s position that the general amending formula, requiring the consent of 7 provinces with 50% of Canada’s population, should apply to it. What became quite clear in the course of the argument, however, is that the constitutional text does not contemplate a great many things which were not thought of in 1981, including some very fundamental changes, and that the Court seems reticent to hold that such changes (including, for example, turning Canada into a dictatorship), might happen with less than unanimous support. Judging by the tenor of the arguments, the Court may well follow the suggestion of some provinces and of the amici curiae, and hold that such fundamental changes require  unanimity, regardless of what the constitutional text says ― or, rather, doesn’t say. The federal government’s lawyers’ concluding exhortation not treat the Constitution Act, 1982, as a “suggestion box” may have come too late. Yet there would have been no need for it if the government itself had not done exactly that with its plan for getting to an elected Senate through the back door.

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Whichever way the Court’s decision goes ― whether it ends up endorsing the federal government’s plan for getting around constitutional text or re-writing that text ― it would be pretty revolutionary. The Chief Justice might have been tired of hearing it, but this is, indeed, a historic case.

What We Said

Apologies for the recent silence. There was no particularly good reason for it, either. Anyway, I’m back.

And there is a very good reason for that: the Québec Court of Appeal has released its opinion in response to a reference by the Québec government on the constitutionality of the Federal Government’s Senate reform plans, which involve the limitation of Senators’ terms to 9 years and, more importantly, the setting up of provincial elections the appointment of the winners of which a Prime Minister would be obliged to “consider” recommending to the Governor General. In Reference re Bill C-7 Concerning the Reform of the Senate, 2013 QCCA 1807 (the French opinion is here; English translation here), the Québec Court of Appeal holds that this project is unconstitutional if undertaken unilaterally by Parliament; it can only be implemented as a constitutional appointment pursuant to par. 42(1)(b) of the Constitution Act, 1982.

The Court starts off by explaining the importance of the Senate to the Fathers of Confederation. The constitution of Canada was meant to be, as the Preamble put it, “similar in principle to that of the United Kingdom,” and that meant, among other things, having an unelected Upper House of the legislature. The province of Canada had, in fact, experimented with an elected Upper House ― and Sir John A. Macdonald had not liked the experience. The appointed, undemocratic Senate was an essential part of the bargain struck in 1867. To this day, “it seems that the Senate and its members play a significant role in federal political life, and that the institution is not simply a mirror of the House of Commons” (par. 12). The Supreme Court has confirmed the Senate’s position as an entrenched, central part of the compromise that made Confederation possible, in Re: Authority of Parliament in relation to the Upper House, [1980] 1 SCR 54.

So much for the context. The relevant constitutional text consists of, on the one hand, par. 42(1)(b) and, on the other, s. 44 of the Constitution Act, 1982. The former provides that an amendment according to what is usually referred to as the 7/50 procedure, requiring the consent of 7 provinces representing between them at least half of the Canada’s population, is necessary to effect “[a]n amendment to the Constitution of Canada in relation to” any of a number of “matters,” among which are “the powers of the Senate and the method of selecting Senators.” As for s. 44, it provides that “[s]ubject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.” Also relevant are s. 24 of the Constitution Act, 1867, which provides that Senators are “summon[ed]” by the Governor General, and par. 41(a) of the Constitution Act, 1982, which requires the unanimous consent of the provinces to amendments “in relation to … the office of the … Governor General.” Québec argued that the proposed Senate reform came within the terms of par. 42(1)(b) as affecting “the method of selecting Senators” and/or par. 41(a) as affecting the office of the Governor General. The Court accepted the former claim, and rejected the latter.

S. 42, it said, should not be interpreted restrictively, as an exception to a more general principle contained in s. 44. These provisions are of equal importance. Amendments relating with the “internal management” of the Senate fall under s. 44; those that have to do with the Senate’s “role[s] within the federal legislative structure, in particular those of ensuring provincial and regional representation and examining bills with sober second thought,” under s. 42 (par. 34).

Crucially, Parliament cannot get around the entrenchment of s. 42 by legislating so as to leave in place the formal provisions of the Constitution while changing the way it operates in practice. For one thing, this would contradict “the principle of supremacy of the Constitution” (par. 43). For another, it would subvert the compromise that made possible the Patriation of the 1981/82, which, so far as the Senate was concerned, had consisted in kicking the can down the road, and postponing any amendments ― to be effected at some later date pursuant to the new amending formula. Finally, s. 42 must be interpreted in light not only of the legal formalities, but also of the political realities of the constitution:

section 42 cannot be read as reflecting a consensus between the federal and provincial governments in 1982 to preserve the formalism but not the reality with respect to the matters set out therein, including the method of selecting senators. … [W]hat interest would the provinces have had when the Constitution Act, 1982 was adopted to protect a juridical reality that, even then, was inconsistent with political reality?

The political reality is that “the method of selecting Senators,” as it existed in 1982, included no electoral process. “The method of selecting Senators” refers not only to their final appointment by the Governor General, but to the entire process leading to that appointment. That process would be modified by the federal government’s reform project. Therefore that project requires a constitutional amendment.

That amendment need not be unanimously supported by the provinces, however, because it does not affect “the office of the Governor General”. While the Governor General is responsible for the final appointment of the Senators as a matter of law, “[i]n reality, the appointment of senators became the exclusive prerogative of the Prime Minister who was then in office whenever a vacancy occurred” (par. 55). The federal government’s reform project would have affected not the Governor General’s (purely formal) role in the process, but the Prime Minister’s. And “to assimilate an amendment of the powers of the Prime Minister with those of the Governor General for the purposes of paragraph 41(a) of the Constitution Act, 1982 would limit Parliament’s powers because of a constitutional convention. Such a limitation does not exist, or at a minimum, does not concern the courts” (par. 58). Conventions exist in a separate, non-justiciable realm. They can be modified by the behaviour of political actors; therefore, a fortiori, they can be modified by statute, without the need for a constitutional amendment.

If this all sounds familiar, it might be because you’ve read Fabien Gélinas’s and my paper on “Constitutional Conventions and Senate Reform,” in which we argued that the amending formula of the Constitution Act, 1982, must be understood in light of the constitutional conventions which determine the practical operation of the constitution. This means, on the one hand, that the “method of selecting Senators” means discretionary decision-making by the Prime Minister and no electoral process, and on the other, that “the office of the Governor General” does not in fact include the power to choose Senators. As a result, the federal government’s reform project comes within the scope of par. 42(1)(b), but not 41(a).

I am very happy with this opinion. I hope that the Supreme Court, which is set to hear the arguments on the federal government’s own Senate reform reference in a few weeks, comes to similar conclusions (and perhaps even spares a few words for us)!

Constitutional Conventions and Senate Reform

Fabien Gélinas and I have written a paper on the (under-appreciated yet crucial) role of constitutional conventions for assessing the constitutionality of the federal government’s plans for reforming the Senate, which are the subject of references now being considered both by the Supreme Court and by the Québec Court of Appeal. (The factums for the Supreme Court reference are available here.) Our paper is now on SSRN. Here is the abstract:

Constitutional conventions are of central importance to the operation of the Canadian constitution; the constitution cannot be understood without reference to them. Yet their effect on the constitutionality of the federal government’s successive proposals for reforming the Senate, which aim at making most or all senators elected rather than appointed at the Prime Minister’s discretion as they are now, has not received much attention.

Constitutional conventions are essential to an assessment of the constitutionality of the proposed Senate reform. Although the government’s proposal does not affect formal constitutional provisions, it would change the actual operation of the constitution by subverting the conventions which make the prime minister responsible for senatorial appointments and requires the unelected Senate to yield to the House of Commons.

We argue that he amending formula of the Constitution Act, 1982, must be interpreted to take these conventions into account. Conventions are underpinned by constitutional principles and are an essential part of the context in which constitutional text must be understood. For the constitution to be a “living tree,” its interpretation must, so far as possible, be consistent with the way it is actually lived. The “method of selecting Senators” and the “powers of the Senate,” which par. 42(1)(b) of the Constitution Act, 1982, protects from unilateral amendment by Parliament are not those that exist only on paper, but those of the living constitution. Because the government’s Senate reform proposal would change them, it can only be enacted under par. 42(1)(b). In its present form, it is unconstitutional.

And from our conclusion:

The [Supreme] Court … held that the new amending formula set out in the Constitution Act, 1982 replaced the rules on constitutional amendment that applied before its enactment. But that formula requires interpretation—and in order to be meaningful, its interpretation must also take the conventions of the constitution into account. These conventions, through which the constitution develops, are part of what makes it “a living tree”. No less than the society’s views on, say, equality, they are part of the evolving context that courts must appreciate when interpreting the constitution.

 The amending formula’s provisions relative to the Senate must, therefore, be understood in the context of the conventions that apply to that institution and give life to the relevant constitutional principles. These conventions limit the Senate’s powers and define the way in which its members are chosen, which are protected from unilateral amendment by Parliament. The federal government’s plan for unilateral Senate reform would alter both of these characteristics and is, for this reason, unconstitutional.

The paper is fairly short, and, I hope, fairly readable. We hope that it reaches people involved with the Supreme Court case, so if you are one of them, please take a look at it, and if you know such people, feel free to pass it on to them.

Keeping Judges Busy

The Globe and Mail reports that the federal government will go to the Supreme Court to review the constitutionality of its Senate Reform project. Opponents of the reform have dared it to do so for years. They’ll get their wish now. The Supreme Court’s was already asked to rule on Senate reform project once, by Pierre Trudeau’s cabinet. The result was Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54―a somewhat vague and inconclusive decision, because the government then did not have a specific reform project, and referred only vague questions to the Court. This time will be different. I won’t comment on the substance of the case just yet, but for those interested in the subject, the text of the bill, as it now stands, is here. And here are the comments of Peter Hogg, the most prominent Canadian constitutionalist, and of Fabien Gélinas, who taught me constitutional law at McGill, on a previous Senate reform bill.

The government also announced today that it will appeal the decision of Québec’s Superior Court in Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 4202, the gun registry case, which I summarized and commented on last week. As I wrote then, I think that the decision should stand, albeit that Justice Blanchard’s opinion was far from the best that could have been written.

So the government is keeping judges―and lawyers of course, not to mention us humble bloggers―well occupied. Which reminds me: it will be four months tomorrow since Justice Deschamps announced her resignation from the Supreme Court. Since the government likes to keep the courts busy, it should also make sure they are fully staffed.

 

Dreaming Double

As promised, some thoughts on Jeremy Waldron’s new paper on bicameralism, which I summarized last week.

First, Waldron’s take on bicameralism reflects his usual fondness of and optimism about legislatures. Legislatures can really be great at making policy, resolving disagreements, and protecting rights, he is convinced, if only they function well. “Legislative due process” is an important concern of his; he is sharply critical of legislatures that do not properly scrutinize and debate the bills they enact into law, for example.

He presents bicameralism as a means to enhance “legislative due process” by introducing a second locus of debate about bills and also possibly by adding different points of view to the mix by virtue of making the two chambers of the legislature representative in different ways. In theory, this sounds great. In practice, I wonder whether bicameralism can live up to its promise. Bicameralism will not serve to increase the amount of debate unless both chambers are in fact committed to fully debating the bills before them. But – to take up the mischievous-or-superfluous argument that Waldron criticizes – if there is commitment on the part of one chamber to debate bills in full, how much is there to be gained by then adding a second full debate? Different modes of representation need not produce different perspectives (as the increasing similarity of the Senate and the House of Representatives in the U.S. shows), especially if the process of representation, however it is organized, is dominated by political parties. Representatives’ views are likely to be function of their partisan commitments much more than of the way they are elected.

Waldron is aware of this danger. Although he accepts that party politics are here to stay, he worries about the executive dominating the legislature, and thinks that an executive-dominated second chamber would be worse than useless. He has two (closely related) solutions for this problem. First, prevent members of the second chamber from serving in the Cabinet. Second, make the second chamber not about government, but about oversight, and hope that voters notice the difference (and vote accordingly). But here again, I have strong doubts about the effectiveness of his proposals. The Canadian Senate shows that even people without any prospect of serving in the Cabinet can be quite partisan. In the U.S. too, many Senators probably lack executive-branch ambitions, yet are fiercely partisan (as are, of course, members of the House of Representatives, for the vast majority of whom the Senate is the height of their ambitions). And I wonder about the possibility of a second chamber exercising good -faith scrutiny – not tainted beyond redemption by partisan affinity or hostility – over the work of a first.

So, Waldron’s arguments in favour of bicameralism seem more hypothetical than real; and there are other problems with bicameralism that he does not fully address. The main one is that of conflict between the two chambers, for which the responsible-government constitutional system is simply not equipped. The lack of any provisions to address this issue, by the way, is a disastrous flaw in the current Senate reform proposal in Canada. Of course, any such provisions would profoundly affect the working of Parliament and require constitutional amendment (even if, and it’s a big if, the current proposal does not).

The problem is this. If the second chamber does exercise its scrutiny role properly (even more if it is motivated by partisan opposition to the government), it will sometimes reject important government bills. What then? If the bill is a matter of confidence (as are all money bills, and possibly some others), its defeat by convention triggers the government’s resignation or dissolution of Parliament, usually the latter. But is it a good idea to hand to a second chamber with a “will of its own” (as Waldron wants it) the power to threaten and eventually to force dissolution at any disagreement? If this power can be exercised for partisan purposes, as it seems bound to be, this is a recipe for disaster, with elections coming as often as the second-chamber majority thinks it can install its allies in power. On the other hand, so long as the government thinks it has more to gain from an election than the second-chamber majority, it will be able to ride roughshod over the second chamber’s scrutiny by making any bill a matter of confidence and thus threatening dissolution if it is rejected.

Now we might specify that defeat of a bill in the second chamber never constitutes a loss of confidence in the government, so that it does not trigger resignation or dissolution. But then, we need a mechanism other than an election for getting over the conflict between the two chambers, at least for those bills that need to be passed, such as budgets.  How this is to be done is not obvious (though not impossible), but whatever mechanism is, its existence dilutes the power of the second chamber to reject the government’s proposals and thus diminishes the benefits Waldron hopes for it.

Thus I think that meaningful bicameralism in Westminster-style constitutional systems is bound to remain a dream, and attempts to realize it might turn into nightmares. It would be better, I think, to try to work on the hugely important issues Waldron is concerned about – legislative due process, executive domination of the legislature – by improving existing Houses of Commons (and unicameral provincial legislatures in Canada). Because, as Waldron notes, executives don’t like sharing power, this will be difficult enough.

Waldron on Bicameralism

The ever brilliant and ever productive Jeremy Waldron has posted three new papers on SSRN this week: one on “The Principle of Loyal Opposition,” one on separation of powers, and one on bicameralism. They all look very interesting, and also very relevant to the current Canadian events. I hope to blog on all of them, but I will start with the one on bicameralism, which of course is most relevant given the Harper government’s interest in Senate Reform.

I encourage you to have a look at the paper itself; I cannot hope to do justice to it in a blog post. In addition to being very intelligent, it is also quite funny. I won’t retell the jokes here, but suffice it to say that it starts off “with some observations about alcohol and sex.” Still, if that’s not incentive enough, here’s a summary of Waldron’s argument. Continue reading “Waldron on Bicameralism”