Comparing Canadian and American Federalism - Studies on the Canadian Constitution and Canadian Federalism

Studies on the Canadian Constitution and Canadian Federalism

Last revised:
28 November 2005

Comparing Canadian and American Federalism

Claude Bélanger,
Department of History,
Marianopolis College

The centralist nature of Canadian federalism is easily demonstrated when one compares it with the original federal constitution of the United States. It is to be remembered that it was an obvious design of the Fathers of Confederation to reverse the process at work in the United States (States Rights) and to empower the central government of Canada with all of the powers necessarily incidental to national sovereignty. It appeared to the Fathers of Confederation that it was the weakness of the "center" which was the major defect of the American constitution and they determined that we needed to strengthen ours to avoid the difficulties (civil war) in which the Americans were found at the time when Canadian federalism was being drafted.

Following the Charlottetown Conference, Macdonald made the following comments at a banquet in Halifax (September 12, 1864) where he explained his views regarding the American constitution:

It has been said that the United States Government is a failure. I don't go so far. 0n the contrary I consider it a marvelous exhibition of human wisdom. It was as perfect as human wisdom could make it, and under it the American States greatly prospered until very recently; but being the work of men it had its defects, and it is for us to take advantage by experience, and endeavor to see if we cannot arrive by careful study at such a plan as will avoid the mistakes of our neighbors. In the first place we know that every individual state was an individual sovereignty - that each had its own army and navy and political organization - and when they formed themselves into a confederation they only gave the central authority certain specific rights appertaining to sovereign powers. The dangers that have risen from this system we will avoid if we can agree upon forming a strong central government - a great Central Legislature - a constitution for a Union which will have all the rights of sovereignty except those that are given to the local governments. Then we shall have taken a great step in advance of the American Republic

Macdonald was true to his words as can be shown by the following comparison.

Canadian Constitution	American Constitution
1) The powers of the provinces specifically defined and limited to the list provided under ss. 92, 93 and 95.	The powers of the central government were specifically defined and limited to the list given under art. 1, s.8.
2) For the major part, the residuary powers were granted to the federal government (preamble of s. 91)	The residuary powers were reserved to the States or the people (10th Amendment)
3) The Constitution Act, 1867 permits the vetoing by the federal government of provincial legislation (s. 56-57 and 90)	No such clause in the American constitution.
4) All of the upper echelons of the judiciary (federal - such as the Supreme Court of Canada - and provincial) are under the control of the federal government.	The federal government controls federal courts; the state governments control the state courts.
5) The chief executive officer of a province (Lieutenant-Governor) is appointed, paid and removable by the federal government.	The chief executive officer of a state (Governor) is elected by the people of the state.
6) Senators (they are supposed to protect regional rights and interests) are appointed by the federal government.	Senators (they are supposed to protect region rights and interests) were appointed by the legislatures of the states. They are now elected directly by the people of the state.
7) Criminal law is under federal jurisdiction.	Criminal law is under state jurisdiction.
8) The federal government may raise money "by any mode or system of taxation."	Federal taxing powers were not as extensive as in Canada.
9) Under circumstances specified by s. 94, the common laws of the provinces (except Quebec) might be unified under federal jurisdiction.	No such clause in the American constitution.
10) The federal government has the right to make remedial laws when a province has adversely affected denominational rights to education.	No such clause in the American constitution.
11) The federal government has the right to declare "works" which are provincial in nature to be transferred under federal jurisdiction.	No such clause in the American constitution.
12) The federal government pays subsidies to the provinces.	No such clause in the American constitution.
13) Even at the level of the vocabulary used, one can easily gather that strength is at the centre and weakness is in the provinces:	The vocabulary in the US is more egalitarian.
a) To a Governor-General of Canada correspond Lieutenant-Governors for the provinces.	To the President corresponds a Governor for each State.
b) We have a Dominion government but provincial governments.	To a United States government corresponds a State government.
c) Canada has a House of Commons; the provinces have Legislative Assemblies.	The US has a House of Representatives; so do the States.
d) Canada has a Senate; the provinces had Legislative Councils.	The US has federal and state Senates.
e) In Canada the federal government has a Prime Minister, the provinces have a Premier.	Not applicable.
Note: Many points made here would not be applicable today. It would be fair to say, on those issues dealt with here, that Canada has become, since 1867, far less centralist while the US has become far more centralist.

Chart comparing Federal, Confederal and Unitary Systems