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Canada Constitution

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The Constitution of Canada is the country’s governing legal framework. It defines the powers of the executive branches of government and of the legislatures at both the federal and provincial levels. Canada’s Constitution is not one document; it is a complex mix of statutesorders, British and Canadian court decisions, and generally accepted practices known as constitutional conventions. In the words of the Supreme Court of Canada, “Constitutional convention plus constitutional law equal the total constitution of the country.” The Constitution provides Canada with the legal structure for a stable, democratic government.

Patriation of the ConstitutionQueen Elizabeth II with Prime Minister Pierre Elliott Trudeau, signing the patriated Constitution, on 17 April 1982.(courtesy Robert Cooper/Library and Archives Canada/PA-141503)
Sa Majesté la Reine Elizabeth II avec le premier ministre Pierre Elliott Trudeau signant la Constitution, 17 avril 1982.

Written Constitution

Headlines from 1982 proclamation of the Charter

The written Constitution is Canada’s supreme law. It overrides any laws that are inconsistent with it. The Constitution of Canada includes the British North America Act, 1867; the  Statute of Westminster, 1931 (to the extent that it applies to Canada); the Constitution Act, 1982; any amendments to these acts; and the acts and orders that brought new provinces and territories into the Canadian federation.

Constitution Act, 1867

The British North America Act (now called the Constitution Act, 1867) merged three British colonies — the Province of Canada (present-day Ontario and  Quebec), Nova Scotia and New Brunswick — into a new federation called Canada, with its capital in Ottawa. The British parliament passed the law at the request of the colonies. Their leaders met and agreed to its terms at conferences in Charlottetown and Quebec City in 1864. (See also: The Charlottetown Conference of 1864 and the Persuasive Power of ChampagneQuebec Resolutions.)

The BNA Act created four provinces: Ontario, Quebec, Nova Scotia and New Brunswick. It also provided for the admission of others. Power was divided between the federal Parliament and the provincial legislatures. The courts act as arbiters in cases of disputed jurisdiction. ( See also: Distribution of PowersFederalismFederal-Provincial Relations.)Conference at QuébecThe Conference at Québec in 1864, to settle the basics of a union of the British North American Provinces.(James Ashfield, original painting by Robert Harris) Library and Archives Canada / C-001855

Areas of federal responsibility include: citizenshipIndigenous peoplesnational defencecriminal lawprisons;  marriage and divorce; interprovincial and international tradebankruptcybankingmoney (including currency and coinage); the postal serviceshipping;  fisheries; the census and statisticsweights and measurespatents; and copyrights.

The provincial legislatures were given power over: municipalitieshospitalsschool systemsprisonsproperty; and provincial courts. There is joint federal-provincial responsibility over agriculture and immigration. Later amendments gave the federal Parliament the power to create an unemployment insurance system (1940) and clarified provincial jurisdiction over  natural resources (1982). Court rulings have also assigned federal authority to several areas that had not existed in 1867, such as aviation,  pipelines and  telecommunications.

The authors of the BNA Act had intended for the federal government to be more powerful than the provincial governments. Yet over time, the provinces grew in power. In part, this was because of the growing importance of areas of provincial jurisdiction (such as social programs and natural resources). It was also due to a series of court rulings that favoured the provinces.Canadian ParliamentThe Parliament buildings in Ottawa, seat of the federal government.(© Aqnus Febriyant | Dreamstime)

Parliament and the Legislatures

The federal Parliament is composed of the monarch and two houses: the Senate and the  House of Commons. There are now 105 members of the Senate: 24 each for Ontario,  Quebec, and the Maritimes (10 for Nova Scotia, 10 for New Brunswick, 4 for Prince Edward Island); 24 for the West (six each for British Columbia,  AlbertaSaskatchewanManitoba); six for Newfoundland and Labrador; and one each for Yukon, the Northwest Territories and  Nunavut.

Senators are chosen by the prime minister and officially appointed by the governor general. They hold office until age 75. (They were appointed for life until 1965.) Members of the House of Commons — Members of Parliament (MP) — are elected by popular vote. A general election is held at least once every five years. Each province and territory is allotted seats in the House of Commons based roughly on population. Each province is entitled to at least as many MPs as senators.

New bills must pass each house of Parliament and gain royal assent (from the governor general) before becoming law. Executive power is vested in the monarch. It is exercised at the federal level by the governor general, whose power is strictly limited by both constitutional convention and statute law. In practice, this means that the executive is headed by a prime minister and cabinet. They are accountable to Parliament for the affairs of government.

Each province has a legislature composed of a lieutenant-governor and a single legislative house. The house is elected at least once every five years. Quebec, Nova Scotia, New Brunswick, Prince Edward Island and Manitoba had legislatures with two houses when they joined Confederation. They all later abolished the upper house. Executive authority is exercised in the same manner as at the federal level. The lieutenant-governor represents the monarch and the premier leads the government.Ontario LegislatureOntario legislative buildings, Toronto, seat of the Ontario provincial government.(Environment Canada, Parks/Heritage Recording Services)

Other Constitutional Statutes

Also part of the written Constitution are the acts and orders that admit new provinces and territories. These include: the Manitoba Act, 1870; the Rupert’s Land and North-Western Territory Order (1870); the British Columbia Terms of Union (1871); the  Prince Edward Island Terms of Union (1873); the Adjacent Territories Order (1880)the Canada (Ontario Boundary) Act, 1889; the Alberta Act (1905); the  Saskatchewan Act (1905); the Newfoundland Act (1949);and the Constitution Act, 1999 (Nunavut).

The Statute of Westminster, 1931 was the all-but-final achievement of legislative independence from Britain. Under the statute, British law would no longer apply to Canada, except in areas where Canada asked Britain to continue to legislate. In 1931, Canada’s federal and provincial governments could not agree on how they would pass future amendments to the British North America Act. As a result, Canada asked Britain to keep the power to amend Canada’s Constitution until Canadians could come up with their own formula for doing so. Canada also used the Judicial Committee of the Privy Council in Britain as its highest court of appeals until 1949. This responsibility was then shifted to the Supreme Court of Canada.Statute of WestminsterThe first page of the Statute of Westminster (1931).(Library and Archives Canada)(avec la permission de BibliothЏque et Archives Canada, Division des manuscrits)

Constitution Act, 1982

The Constitution Act, 1982 gave Canada complete independence from Britain. Months of negotiations between the federal and provincial governments were held to determine how to “patriate” the country’s last British-held powers from Britain. The resulting Constitution Act, 1982 made several changes to Canada’s constitutional structure. The most important were the creation of an amending formula (the criteria that would have to be met to make future changes) and the addition of the Canadian Charter of Rights and Freedoms.

Under the amending formula, most sections of the Constitution can be changed with approval from the Senate, the House of Commons, and the legislatures of at least two-thirds (seven) of the provinces, so long as those provinces contain at least 50 per cent of Canada’s population. (This is called the 7/50 rule.) Unanimous agreement of the Senate, the House of Commons and all ten provincial legislatures is required to abolish the Senate or to change the composition of the Supreme Court of Canada. It is also needed to change provisions that deal with: the offices of the monarch, the governor general, or the lieutenant-governors; the use of the French and English languages; and the right of a province to have at least as many MPs as senators.

Amendments that deal with some but not all the provinces (for example, changing the boundary between two provinces) may be made by the Senate, the House of Commons, and the relevant provinces. An amendment can proceed without Senate approval if the House of Commons approves the amendment and then does so again at least 180 days later.Canadian Charter of Rights and FreedomsCopy of the Canadian Charter of Rights and Freedoms.(Dept of Secretary of State, Canada)

The Charter of Rights and Freedoms guarantees — and sets limits to — the fundamental rights and freedoms of Canadians. Under the notwithstanding clause, the federal Parliament or the provincial legislatures can exempt any law from certain Charter provisions for up to five years.

The Constitution Act, 1982 also reaffirms the existing rights of Indigenous peoples in Canada. However, it leaves these rights largely undefined. The  Charter of Rights and Freedoms guarantees Indigenous peoples their rights under the Royal Proclamation of 1763; it specified that they would continue to hold all lands they had not ceded or sold. (See also Rights of Indigenous Peoples in Canada.)

Constitutional Conventions

Constitutional conventions are the unwritten rules of a system of government. They essentially fill the holes in the written Constitution. For instance, none of Canada’s constitutional documents defines the method of selecting the first ministers (the prime minister and the premiers) or the cabinets. This is governed by convention.

Conventions are in the political realm. They are not enforced by the courts. Courts have given opinions on the existence and application of conventions. It is up to voters to enforce conventions at the ballot box.

The Constitution Act, 1867 gives extensive powers in theory to the governor general and the provincial lieutenant-governors. Conventions strictly limit their personal discretion in the exercise of these powers in all but the most exceptional of cases. Governors general and lieutenant governors act only on the advice of ministers. They must follow that advice, so long as the government maintains the confidence of the legislature or Parliament, and the advice is constitutional.

When the office of first minister becomes vacant, the governor general or lieutenant-governor invites an individual who can gain the confidence of the legislature to become first minister and form a cabinet. In practice, this is almost always the leader of the party with the most seats. If no party can command the confidence of the legislature and form a government, an election is called. These conventions ensure that the government is accountable to the legislature and, by extension, to the electorate.

According to the confidence convention, when a majority of the members of a legislature no longer have confidence in the government, and express it through a vote in the legislature, the first minister must resign or ask the governor general to call an election.

Politics

Analysis | How to reverse the politics of coronavirus vaccines, as demonstrated by Fox News – The Washington Post

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One underrecognized aspect of American politics is that most of the people who voted for Donald Trump last year live in states that cast more votes for Joe Biden. At a county level, that’s not true; most Trump voters live in counties that voted for Trump. But not by much: About 45 percent of Trump voters live in counties that preferred Biden.

Why? Well, because a lot of people live in big cities, and big cities are often heavily Democratic. While 55 percent of Republicans live in counties that voted for Trump, 55 percent also live in the 300-odd places that are the most heavily populated 10 percent of counties in the United States. (More than three-quarters of Democrats live in those counties; as a corollary, about 73 percent of Democrats live in counties won by Biden.)

The point is straightforward: Places with more people have more people. This is not what one would call a staggering insight, but it’s worth reiterating since people tend to think of heavily populated places as overwhelmingly Democratic. In fact, the most populous counties in the country are less robustly Democratic than the least populous ones are Republican. The 623 least populous counties preferred Trump by 46 points. The 623 most populous counties preferred Biden by less than one-third of that margin.

(The chart below looks at deciles of counties; that is, one-tenth of all counties, ranked from the least to the most populous.)

Why are we going over this? Because of the attempt by Fox News’s Jesse Watters to suggest that, of the current surge in coronavirus infections,
“all of the hot spots are in huge Democrat cities.”

He said this on Friday, even as he (thankfully) encouraged getting more people vaccinated. But he did so while clearly attempting to cast blame for the surge on Democrats — trying to reverse the recent emphasis on the surge of infections in heavily Republican areas, since those places are less likely to be heavily vaccinated. In a statement provided to Mediaite, he tried to defend the claim.

The Centers for Disease Control and Prevention’s categorization of places with substantial rates of transmission “applies to nearly every major metropolitan area in the United States … Los Angeles, New York, Atlanta, Houston, Miami, St. Louis, etc. … according to the ‘hot spot’ county map highlighted on the CDC website,” the statement said. “Plus, anyone with common sense understands that 3.5M unvaccinated New York residents living within 300 square miles of each other, is more of a so-called ‘hot spot,’ than just 388,000 unvaccinated Wyoming residents living within 98,000 square miles of each other.”

This is pretty lazy stuff, even for Watters. He first cites the CDC’s definition, pointing out that applies to big cities — though without pointing out that it also applies to hundreds of small counties. Then he throws out the CDC’s definition of a hot spot in favor of his own, in which he begs the question by declaring a hot spot to depend on population density.

So let’s look at the actual numbers, shall we?

There is, in fact, a relationship between the average number of new cases in a county and the county population, according to counties for which we have data. Los Angeles County has seen a lot of new cases in the past two weeks (which is the time period indicated on the graph below), but it also has millions of residents.

But the CDC, not new to this, is familiar with how population works. So it defines community transmission relative to population. It uses two metrics — the rate of cases per 100,000 residents and the rate of positive tests — to determine the places with “substantial” or “high” transmission.

If we plot population against the rate of cases per 100,000 residents, the picture shifts. In the least-populated decile of counties, 69 percent have transmission rates above the median. In the most-populated decile, 54 percent do.

We can look at this another way. Over the past two weeks, most new cases have been in the most populous places for the same reason that so many Trump voters live in Biden counties. Adjusted for population, though, the hardest-hit places shift to the middle of the pack.

If Los Angeles was seeing the same rate of infections as the hardest-hit small county — Sullivan County, Mo. — it would be seeing ten times the number of new cases each day.

It’s true, as Watters points out, that more unvaccinated people live in blue states, since those states have more people. But as of two weeks ago, more unvaccinated adults lived in red states even though those states have fewer adult residents. This issue of vaccination is entirely the point, of course, with places that have lower rates of vaccination seeing more new cases per resident.

The vaccination data, compiled by the CDC, are imperfect, but you can clearly see the pattern below. More than a third of the country lives in the 2,300-odd counties in which more than half the population hasn’t received at least one dose of the vaccine.

What’s particularly alarming is how many seniors have not been fully vaccinated. In more than half of counties, according to the CDC data, fewer than half of those over age 65 have been fully vaccinated.

But this is just running Watters’s playbook in reverse. In the most densely populated counties, home to two-thirds of the population, more than three-quarters of those aged 65 and over have been fully vaccinated.

The risk remains high in places with lower vaccination rates, not just places with more unvaccinated people. Those places are generally places that voted more heavily for Trump in 2020. And the correlation between the two makes sense, given Trump’s — and Fox News’s — rhetoric.

“We have to do away with all the politics and just try to get people vaxxed,” Watters said on Friday. Fine. Let’s.

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Is Kamala Harris Really Bad at Politics? – Bloomberg

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Who was the runner-up for the Democratic presidential nomination in 2020?

The reason the topic comes up is that opponents of Vice President Kamala Harris seem to have settled on an attack line against her: As a Washington Examiner columnist argued a few weeks ago, she’s “bad at politics.” It’s something that I see pretty often in reader emails and on Twitter, mostly from Republicans but in some cases from liberal Democrats. There’s no surprise here; the vice presidency makes everyone look bad, and the idea that the first Black and Asian-American woman to hold this office is not up to the job is consistent with certain stereotypes. 

It’s also preposterous. Yes, once nominated almost anyone can win a general election, and perhaps every once in a while a nomination is just luck — in fact, I’ve argued that Donald Trump’s first nomination was largely a fluke. But Harris managed to work her way up in local and state politics in California, without money or family connections on her side, winning multiple nominations. That’s the mark of a good politician. So, for that matter, is securing the vice-presidential nod. Using presidential nomination results as evidence of a politician’s weakness is like criticizing someone for failing to medal in the Olympics; just getting into the competition is usually evidence of considerable ability.

Granted, after entering the contest, Harris dropped out before the first vote in Iowa. But whether we should consider her effort a flop gets back to the question I started with: Who was the runner-up to Joe Biden? 

You can make the case for several candidates. Bernie Sanders is the most obvious one, given that he finished second in delegates, states won and overall votes. But there’s reason to think he wasn’t the candidate who came closest. The evidence suggests that a solid majority of Democratic party actors, and perhaps of voters overall, was prepared to support anyone but Sanders. If that’s the case, then he really had only a small chance of winning and I’m not sure it makes sense to call him the runner-up.

If not Sanders, who? Pete Buttigieg at least managed to win an important state — Iowa — and finished second in New Hampshire. But Buttigieg sparked even less enthusiasm among party actors than Sanders did. There’s even a case to be made for Amy Klobuchar or Elizabeth Warren. Both had some backing from party actors; both had occasional (albeit small) surges of support among voters. Suppose that their strong debates right before the New Hampshire primary (for Klobuchar) or Nevada (for Warren) had taken place in November or December, in time for them to really capitalize on it? It’s not hard to imagine Klobuchar or Warren, rather than Buttigieg, emerging from the pack in Iowa, and perhaps either senator would’ve been better positioned to take advantage of it.

The counterargument is that none of these candidates had any Black support, and without that they were doomed in South Carolina and in most of the rest of the primaries. We don’t get to rerun the contest to see whether Representative James Clyburn would’ve endorsed whoever looked most viable after the Nevada caucuses. But Harris, despite her early exit, may have been closer to the nomination than she’s usually given credit for. She did enjoy a brief polling surge after a strong early debate, which turned out to be mistimed. And she won some party-actor support. Perhaps there are fewer what-ifs involved in projecting her into the nomination than there are for some of the other also-rans.

You certainly don’t have to buy that argument — I’m not sure I do — to concede that the vice president has some valuable political skills. Mostly, however, I think the question about the runner-up is useful because answering it involves thinking carefully about what really goes into winning presidential nominations, and helps clarify what we really know and what we’re not sure about. 

1. Paul Musgrave on the Olympics and nationalism

2. Kim Yi Dionne and Laura Seay at the Monkey Cage on three new books on Kenya.

3. Good Dan Drezner on the historical and current importance of Fox News.

4. Kevin Drum also on Fox News.

5. Sahil Kapur and Benjy Sarlin with good speculation about Mitch McConnell’s thinking about infrastructure.

6. And Jamelle Bouie on voting-rights history.

Get Early Returns every morning in your inbox. Click here to subscribe. Also subscribe to Bloomberg All Access and get much, much more. You’ll receive our unmatched global news coverage and two in-depth daily newsletters, the Bloomberg Open and the Bloomberg Close.

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Infrastructure Bill Shows That US Politics Are Not (Yet) Broken – Bloomberg

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As President Joe Biden moves toward another legislative victory — namely, the $550 billion infrastructure bill — it’s worth asking what its success says about American politics. Mostly it’s good news, whether or not you agree with the policies of the Biden administration.

The most enduring truth is that the median voter theorem, as social scientists refer to it, continues to explain a lot of political outcomes. In an era supposedly marked by gridlock and polarization, a centrist infrastructure bill is on the verge of passage.

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