Lecture notes, lectures - Richard Schultz PDF

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Richard Schultz - Richard Schultz - Richard Schultz - Richard Schultz - Richard Schultz - Richard Schultz - Richard Schultz - Richard Schultz - Richard SchultzRichard Schultz - Richard Schultz - Richard Schultz - Richard Schultz - Richard Schultz - Richard Schultz - Richard Schultz - Richard Schultz...

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Buy textbook Check mycourses 2 “in-class” exams ○ NOT cumulative ○ Oct. 6, 6:15-7:30, LEA 132, 20% of grade ■ If next exam is significant improvement, exam can be devalued, usually no more than 10% ○ Nov. 9, 6:15-7:30, LEA 132, 20% of grade Final exam ○ Cumulative, but majority end of term ○ Final question demands integration of all material ○ 3 hrs, 40% of grade Old exam excerpts will be online First section ○ Identify things that are emphasized ○ Worth ½ or ¼ mark Second section ○ Identify/explain significance of somethings ○ 1 or 2 sentences Third section ○ Essay questions ○ Choice of questions ○ **This is the cumulative part of the final Conference participation ○ 20% of grade ○ Way to talk about material ○ 8% just for attending ○ 12% are quality of participation “What is this telling me about significance/structure of power in gov of CAN. who has it? checks? Who gets power bc of this? Who is subject to power bc of this?” Conferences begin after Sept. 18 ○ Mon/Wed/Fri until Sept. 18 ○ No lectures on Fri. after Sept. 18 ○ No lectures Oct. 26, Oct. 28 ○ Makeup lectures on Oct. 16 Oct. 23 ○ No conferences week of Oct. 6

post federalist canadian history, post-1867 desomnd morton

Topic 1: Issues in Governing Canada ● slide 1 ○ democratic malaise--”major debate” re: governance is not truly happening ○ decline in voter turnout, downward trend… why? ■ 3rd parties not as likely to win ■ harder to vote (voter id law “fair elections act”) ■ minority gov’ts ■ even when “majority” seats, not usually maj. of pop. vote ● is that a legit system? ○ not voting is a sign of unhappiness w/ system ○ # of seats in parliament doesn’t matter, support in house of commons aka people, does ○ large part of gov’t is unwritten rules ○ people elect the people who elect the gov’t ○ increasingly, less trust in politicians+institutions ■ 60%+ feel that politicians don’t care abt them ■ feel politicians are out of touch, don’t care ○ however, there is still faith in CAN democracy ○ prime minister’s office has a great deal of power ● slide 2 ○ 2008 const. crisis ○ can gov. gen. turn down request to suspend parliament? ■ cons.: idea that HOC elects gov’t is outdated ■ libs/ndp: can we go over GG’s head ● slide 3 ○ quebec separation referendum ■ changed relationship b/ween fed/prov. gov’ts ● slide 4 ○ argument that charter of rights and freedoms subverted parli., gave courts too much power ○ courts have increased power to make policy decisions ○ role of courts: big debate today ○ real question: who lost power? ■ some: parli. ■ anti-majoritarian “9 judges overturn HOC decisions” ● however, there aren’t any majority gov’ts ● parli. suprem. already lost ● real branch that lost power was exec. and PM ● slide 5 ○ goals of course ■ look at relationships in gov’t ● how have they changed? ○ ex: fed govt used to be dom. over provs ○ provs have become more powerful over time ○ but there has been no const. changes ○ ex: govt used to rely on HoC more ○ now, HoC not very relevant ○ when gov’t has maj, relationship btwn HoC/exec is v diff ○ has been so much change thru/out hist ■ yet poli system hasn’t changed

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power still hoarded in poli. system, even tho power has been dispersed in many other systems

slide 6 ○ relationship b/ween gov’t and governed has changed ■ increased alienation ■ citizens see themselves not as spectators, want more direct role ■ want to participate not just at election time ■ citizens feel the const is theirs ○ relationship b/ween fed/prov. gov’t has changed--shifts ■ initially separate ■ after WW2, federalism more cooperati ve ■ under harper--increased separation ○ relationship between gov’t insts ■ ex: HoC less independent when there is greater party loyalty ■ house now more responsible to gov’t (used to b other way around) ■ ex: role of senate now more confused than ever ■ can’t change const w/out complete unanimity of provs slide 7 ○ actors in poli system ■ note: chart is missing people ■ change: citizenry have emerged as maj actor in const matters slide 8 ○ overall approach and executives ■ be able to describe insts ■ analyse/explain insts--why insts/relationships take the form they do today ■ assess/evaluate changes--are they good? evaluate performance of insts/actors slide 9 ○ whitaker quote--disapproving of const act 1982 ○ trad view--const is supposed to maintain peace btwn govts ○ newer view--maintain peace btwn people/govts ○ orig const dealt with federalism--relationship btwn fed/provs (mostly) ■ btwn political elites ○ 1982 act dramatically brought citzs into gov’t/const culture slide 10 ○ mallory “almost every poli inst is less effective than it should b” slide 11 ○ mallory argues that checks and balances have disappeared from can. gov’t ■ also from academic discourse ○ c+b were in can system, v. intricate, but they were less formal ■ GG checks govt ■ HoC checks govt ■ sen checks house ■ cabinet checks PM ○ howev, over last 45 yrs, PM has become more powerful ■ PM has no equals ■ cab has lost power slide 12 ○ ces franks: “ours is not a syst of c+b but of fused, concentrated, centralized power” ○ assessment of contempt time only

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slide 13 ○ central focus--power in/through insts ■ power--actor A commands actor B, B expected to obey ■ insts--system of rules that define the roles that people play as part of those insts slide 14 ○ concerned w/ the patterns of roles w slide 16 ○ conceptual distinction ○ dignified (symbolic)--power on paper but not exercised (ex: GG) ○ efficient (the way things actually work/get done--who has power)-- real power ○ are parts of gov’t in the dignified or symbolic role?

09/14--Topic 2--The const as a master inst ● purpose of const ○ rule book for conduct of political life ■ tho there are gaps, not all clear ○ defines relationships btwn branches of gov’t+prov/nat’l levels of gov’t+citizens/gov’t ■ NOTE: “levels” implies hierarchy, used to be accurate, perhaps not so much now ■ can const is largely silent re: role of citiz--UNLIKE states, france, etc., modeled after UK const ● everything implied--implied that role is similar to that of uk ○ represents basic values of political system ● elements of const ○ entrenched const law--difficult to change (didn’t even know how until charter) ■ ironically, BNA was not entrenched, UK parli could change until 1982 ■ 1982 const act, section 52--const is supreme law of land, any law in conflict w/ const is of no force ● who determines if law is in conflict? sup court ● thus court assumed a new role, “guardian of const” ■ to change=fed gov’t+7 provs representing 50% of pop ● 7-50 rule ● unanimity ■ to abolish something=fed gov’t+all 10 provs ○ non-entrenched const law--easier to change, but still important ■ can be changed by maj in HoC/sen ■ ex: not even sup court is entrenched ■ neither is 1960 BoR ■ 1996 const veto act--after 1995 referendum, contrary to const, fed gov’t lends veto to quebec ● no minister of the crown can introduced amend unless approved by QC, ont, BC, maj of western provs, maj of maritime provs ■ clarity act--tough love, decision by sup court that QC could separate after clear question w/ clear majority supported independence ● didn’t define what “clear” is ● HoC ALONE, NOT sen will decide if question is clear ■ fixed election act ○ judicial decisions/case law ■ “umpire” of power relations/federalism ■ decisions interpret const, thus make rules ■ crucial in development of nature of federalism ■ post-92, crucial in interpreting charter ● struck down mandatory minimums as cruel+unusual ○ const conventions ■ const similar in principle to UK ● but UK didn’t hav written const, depended entirely on conventions ■ unwritten, not legally binding, rules of behavior ● hav substantial political power bhind them ● non justiciable--can’t take gov’t to court ● tho supposed to be binding--but how binding? ■ ex: responsible gov’t--gov’t must have confidence of HoC ● if gov’t loses confidence, it must resign

GG MAY have discretion to call upon someone else to form gov’t, if they believe that gov’t would b responsible ○ this is not written anywhere ● principle developed after durham report--1847/8 ● recent case--paul martin’s gov’t--opposition motion to condemn gov’t passed, but matin denied it was a vote of confidence ○ exposes problems of unwritten rules ex: ministerial responsibility ● syntax: “government of canada,” “Harper Government ● individual ministers are also responsible to HoC--responsible for everything that’s done in their name ○ used to be only 15 officials working for ministers, now 28,000, so this is less realistic now ● ministers collectively responsible--once decision is made, ministers must support it in order to stay in cabinet ○ or you resign, ex: michael chaun--disagreed w/ law that made quebec a “nation” bc he wasn’t consulted, disagreed ○ or, you get fired before 1982, presumed unanimity was required for const amendments that affected provinces ● when provs transferred responsibility for unemployment to fed gov’t ● yet 1982 charter only had support of 9 provs ● sup court ruled that unanimity convention did not exist 1980/1 ● trudeau tries to force const amends by passing them thru britain ● supposed 2 b a nonjusticiable topic ● court says this is legal, BUT there is const convention that says trudeau needs “substantial provincial consent” ○ first time this convention is articulated conventions r so vague but so crucial couldn’t govern w/out them perhaps some should b written out, as they have been in australia, new zealand ex: caretaker convention ● once an election has been called, the gov’t stays in power, but once parli is dissolved to call an election, the gov’t, except in serious emergency, the gov’t can only make routine decisions ● ex: right now, during election period, harper couldn’t appoint sup court justice, sens (tho that’s another matter) ● can run gov’t, but can’t make decisions ● activity that is routine, non-controversial, emergency, reversible, agreed to by opposition parties conventions are debatable, powerful, and there are many misinterpretations of them after election, harper has authority to as GG to swear in his gov’t, with the assurance that PM will ask GG to call parli in a reasonable time ● about a month, but no specific time set ● in the meantime, caretaker convention assumed to continue (until shows that gov’t has confidence of HoC) ●

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conventions are ambiguous, many have lost meaning, tho they are referred to as part of const ● some are part of dignified const, NOT effective

norms ■ in US/presidential syst--power is VERY spread out, btwn branches, even w/in committees ■ in can/parli syst--power is hoarded by gov’ts ■ if gov’t is given lots of power, there should be norm of self-restraint ● has weakened over last 30-40 yrs ● Trudeau calling MPs “nobodies” ■ should be/is a norm of self-restraint ● omnibus budget bills including unrelated provisions ■ democracy is “gov’t by discussion” ● can argue that have lost the respect necessary to have discussion, gov’t have lost restraint ■ other norms: senatorial deference ● senators know that they are appointed, not always or the best reasons, thus senate usually defers ● tho, there are some cases in which sen stands up to gov’t ● self-imposed value conventions vs. norms ■ norms=schultz's ideas, implicit rules of behavior, just things to keep in mind in a syst where gov’t has so much power ● should b self imposed ● not really part of const ■ conventions=more important, non-binding but powerful ● part of const

09/18--The Formal Executive Crown and The Governor General ● slide 1 ○ general feeling abt gg seems to be that gg is just rubber stamp, no real power ○ other say gg has tons of power ○ gg cannot unilaterally dissolve parli ● slide 2 ○ executive power--vested in queen (sec. 9) ■ PM not mentioned ○ legislative power--vested in queen, parli (sen +HoC) (sec. 17) ■ note order ● slide 3 ○ original roles of gg ■ “head of state” ● arguably only the queen is HoS ■ representative and official of the british govt (imperial officer) ● thus, in first 40-50 yrs of can poli syst, gg was significant check ○ could reserve legislation--no royal assent until got advice of british govt ■ but no gg today would refuse royal consent ○ brit gov’t could say law conflicts w brit policy+disallow ■ even if gg signed it ● slide 4 ○ canadianizing the office of gg ○ 1926 balfour declaration ■ followed king-byng conflict--colonies r not inferior to brit gov’t, they r equal--in effect ended role of gg as a check (brit gov’t cant disallow) ○ 1931 statute of westminster--made balfour legal in brit (for britain's white colonies), gg no longer an officer of the british gov’t, only a representative of the crown ○ 1947 letters patent--transferred all powers of the monarch to her representative, the gg--BUT it didn’t ■ ex: queen may appoint, at request of PM, 2 additional senators from each prov--gg cant ■ other minor powers ■ but maj of powers were transferred ○ 1952--appointment of an actual canadian to post of gg ■ some ppl weren’t sure this was a good idea--thought a canadian would get involved in politics ● thus drag monarch into politics ● this implies that the gg is more than just a rubber stamp ● slide 4 ○ main functions of the gg ■ formal--ceremonial ● right to b consulted, to encourage, to warn PM ■ powers/roles ● to be dignified, represent monarch, speeches, order of canada, commander in chief (awards medals) ● saves time for politicians ■ reserve powers ● refuse an election and find an alternative gov’t

extent of power=vague, when it can be used=uncertain, but it def exists ● gg is overwhelmingly symbolic, but can play important role as check in some situations ● is confused/confusing ● from king-bing to 2008, GG was not forced into any poli situations-no need to use reserve powers ● chooses PM to form gov’t (tho usually decision is obvious) ● can dismiss PM--in EXCEPTIONAL circumstances ○ has done so in australia--40 yrs ago ● GG can also hold appts by refusing to sign them (only exceptional circumstances) ○ also technically power to not give royal consent--but this hasn’t been used since 1700’s ● GG has some discretion in when parli is called--bc technically PM can wait a yr--but that’s unhealthy for democracy ● granting dissolution/request for an election ○ most say can only b done on advice from PM (PM doesn’t even hav 2 consult w cabi) ○ king-byng--GG can refuse request under exceptional circumstances--needs to make sure there is alt govt overall--GG is impartial, but in special circumstances can exercise judgement-thus needs to b removed from politics as much as possible ■ Schreyer, Sauve, Hnatyshyn, LeBlanc all had been in politics/were political appts--could b argued inappropriate ■ appt of johnston done thru special committee appted by harper--did extensive, country-wide inquiry--resulted in David Johnston ● shud also consult leader of opp ● mayb consider having GG elected by HoC ■ legitimacy of office must b respected gg has to balance constitutional correctness w/ political correctness ●

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prerogative power--”residue” of ancient monarchical powers of brit rulers passed to PM/GG statutory powers--in law/statutes to form govt--don’t need to win most seats, or even maj of pop vote--in situation of no maj, who should b PM is unclear and prev PM can ask GG to allow their govt to continue

09/23 Topic 4: The House of Commons--Dignified or Efficient? ● are members of parli really legislators? do they make the laws? ○ no--legislators create legislation, parli just approves it ○ if parli is legislators, then so is the GG ○ even tho const says legi is 3-part ● can doesn’t have majorities--rather, false majorities (maj seats, min votes) ● two main functions of HoC ○ representation ■ “one person one vote”--not really ● votes of those in territories/PEI/NS/NB/manitoba/saskatchewan are proportionally worth more--some ppl overrepresented, some under (BC, alberta, ont) ■ sen floor rule--no prov can have fewer seats than senators (mostly protected maritime provs) ■ 1985 Representation Act--nonentrenched const law (at the time, now entrenched)--no prov can go below what it had in 1974 ■ voters in rural areas more signif than urban--rural votes count more ● esp an issue bc old white ppl live in rural areas ■ single-member plurality/first-past-the-post--person who gets 1 more vote than 2nd person gets elected--don’t need a maj ■ voting syst usually favors 1st natl party+regional party ■ hurts 2nd nat’l party ■ tru maj--maj of seats+votes (only happened 2x in recent hist) ■ false maj--maj of seats, min of votes ■ not representative of gender, age, ethnicity--this did improve in 2011 ■ representation=power ○ accountability ■ responsible Government--HoC supposed to b check on exec ■ HoC supposed to make govt--NOT people ● and, makes gov’t work (gives authority+funds) ● makes gov’t behave ● make alt gov’t ■ but in fact, gov’t is in control--syst is exec-centered ■ in maj govt situation, HoC has no ability to control exec ■ HoC responsible to gov’t ■ in “golden age” of parli, had “loose fish” who did not commit to a party, sometimes until elected ● move to one election date+secret elections diminished this ● then strong party discipline comes more into play--gov’t can punish those who break ranks--in the extreme, can b kicked out of caucus, not hav nomination forms signed ■ configurations of power ● executive-centered ● parliament-centered ■ characteristics of the HoC ● strong party discipline ● adversarial-ism ● strong party discipline ○ gov’t has position, opposition is there to oppose/criticize ○ object is not to find compromise, but to present two points of view and have sides choose

■ but this implies only 2 sides “golden age” of parli 1878--simultaneous elections rise of disciplined parties neg ■ creates public dissatisfaction w HoC ○ pos ■ leads to crit of govt, hear voices that wouldn’t necessarily b heard ■ leads gov’t to take action it doesn’t want to take ■ opp can act almost as prosecutor ○ undermines ability of HoC/opposition to act as check on govt ○ parli is supposed to b training ground, but most members of parli hav v short terms ■ 40% turnover each election--not defeats, but ppl don’t run again ■ not a v satisfying job ○ imbalance of power btwn short-term MPs and long term cabi members ○ conventions of parli give lots of power to PM ○ time allocation/closure--allows gov’t to control/manipulate agenda, undermine ability of HoC to act as check/forum for debate ■ 1980-2003, closure/time allocation/shutting off of debate used @ least 166 times, 5 or 6 times/yr ○ omnibus bills produce a similar result adversarialism ○ question period ■ in reality, theatre ○ opposition days ■ in reality, far too flexible to act as effective constraint reform: strengthening house ○ objectives ■ place some constraints on PM power ■ enhance role of HoC ○ some say exec syst produces collectivist policies ○ yet gov’t w strong power can make collectivist policies as easily as it can destroy them possible reforms ○ relax discipline ■ 1/2/3 white syst ■ constructive nonconfidence vote requirement ○ limitations on “omnibus bills” ○ ⅔ MP requirement for prorogation ○ fixed dates for elections (w/ qualifications) ○ house mut meet w/in 30 days of election ○ ○ ○ ○

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10/14--Topic 5--the Senate ● key traits of sen (can’t b changed according to sup court w/out const amend) ○ method of appt ○ tenure ○ can’t b abolished ● roles/functions of sen ○ refining legislation--sober 2nd thought ■ has changed many pieces of legi (then goes back to HoC, which typically agrees w/ changes) ■ appointments are partisan, but sens try to b less partisan ■ no fed country in the world doesn’t have second/upper house ○ studying legislative proposals ■ will hear testimony/opinions on legislation, submit reports/recommendations back go HoC/gov’t ○ investigations ■ conduct investigations o...