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POLI 371 Study Guide - Final Guide: Oliver Mowat, Provincial Rights Party, Common Schools Act Of 1871


Department
Political Science
Course Code
POLI 371
Professor
Christa Scholtz
Study Guide
Final

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“Constitutional Politics and the Legacy of the Provincial Rights Movement in Canada” by
Robert C. Vipond
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The provincial rights movement (PRM), developed a distinctive approach to the
constitution that rested on 2 principal claims: 1) it stood for an expansive understanding
of provincial autonomy 2) it conceived of the constitution as a set of formal rules and
principles largely independent of broader considerations of liberal democratic theory
The provincialist constitutional doctrine found in the Confed. settlement itself is the very
same that provided the PRM with the ability to discredit one of the key centralizing
devices of the Macdonald constitution: the veto power of disallowance
The “heart and soul” of the PRM in the first 30 years after Confed. was in Ontario, where
the province’s leaders challenged the centralizing policies of John A. MacDonald’s
Conservative gov’t
Paradox: the very Ontarians who became Macdonald’s staunchest opponents were, at
the the time of Confed., his strongest allies
Brief history of how Confed. was brought about and why the leaders of ¾ of the largest
factions in Can. poli at the time (George-Étienne Cartier, George Brown, and John A.
Macdonald) were united in their common desire to form a union:
Cartier and his Bleu Party: federalism as a means for cultural survival. If French-
Canadian interests were to be preserved, did it not make sense to demand prov.
control for those matters? (i.e.: religion, education)
Brown and his Reform Party: the Confed. proposal was “a great measure of rep.
reform” inasmuch as it provided that rep. in the HOC would reflect the population.
The Confed. proposal also embraced the federal principle, the idea that “local
gov’ts are to have control over local affairs,” (this would protect Upper Canada if
other parts of the state “choose to be extravagant” as they would have to bear
the burden themselves)
Macdonald: his support for a federal union was noticeably less enthusiastic. He
believed that what BNA most needed could be best provided by a unitary gov’t.
By 1864 however, he reconciled himself to give his support to a highly
centralized, but still fed. union.
Oliver Mowat (perhaps the most important force in PRM after Confed. and a respected
figure in the Reform movement before it): the problem of the existing constitutional
arrangement is that it allowed a French, Catholic minority to rule an English, Protestant
majority.
Traditional Federalism: a league or alliance in which members retained their sovereignty
while creating a quasi-governmental authority for certain common, but limited, purposes.
This contrasts with the federalism created by the US constitution and defended by
Madison: conceived of fed. and state authorities as co-equal sovereignties where each
would have complete governmental powers and supremacy within its sphere of
competence “coordinate and independent” (i.e.: on those matters in Sec. 92 of the BNA
act, the provinces alone can make laws)
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Macdonald: a centralized federal union offered the political centrism he thought
necessary to build a nation but also the provincial autonomy needed to facilitate the
agreement (POGG and powers enumerated in sec. 91 ensured this level of centrism)
However, actual terms of the BNA act are not so neatly divided; fed. and prov. spheres
were not meant to be so insulated from one another (concurrent jurisdiction: immigration
and agriculture). Furthermore, the provinces were not given the fiscal capacity to
manage their constitutional responsibilities… from the start, they depended on fed.
subsidies
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Sec. 93: the fed. gov’t was given the power to oversee minority educational rights in any
provinces in which a system of separate schools existed BY LAW at the time the
province entered into Confed. The fed. gov’t could also impose remedial legislation on
an offending province in this matter if necessary (PRM claims this could not be
reconciled w/ the fed. principle)
Jacksonian Rouges of Lower Canada (anti-clerical critic): Confed. would become a
unitary gov’t because the provinces would be too weak & too vulnerable to defend
themselves (objections like these were made very few and far between; yet these
objections suggest the idea of prov. autonomy had become a fundamental constitutional
principle in Canada by 1865)
Considering the later strength of the PRM in Ontario, the Reform party’s commitment to
the terms of the Confed. settlement is especially significant
Macdonald did not understand that once the legitimacy of a founding myth such as
provincial autonomy is established, it becomes difficult to contain
**While the pre-Confed. period was dominated by the consensus that a federal union
had to be established to break the political deadlock in Canadian politics, the period after
1867 was dominated by disagreement over the real meaning and implications of the
federal principle in Canadian politics (this disagreement was largely over the power of
disallowance)
PRM’s success underscores the importance of constitutional principles in constitutional
politics
Vipond’s def’n of Disallowance: a veto power, modelled after the imperial power of the
same name, which gives the fed. gov’t the unqualified right to strike down or nullify any
act of prov. legislature
In such matters as above, constitutional practice is as important as law, and from the
beginning Macdonald was careful to balance the unqualified legal power of disallowance
with clear guidelines and limitations for its use:
(1) being altogether illegal or unconstitutional (refers to those acts which exceed
the bounds of prov. competence; those which overstep the boundaries of Sec. 92
or which encroach on the subjects in Sec. 91)
(2) as illegal or unconstitutional in part
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