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MP Intro. Introduction. 1. 2, 3, 4, 5, Conclusion, Postscript, End

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.