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34 Queen's L.J. 163 (2008-2009)
The Myth of the Federal Spending Power Revisited

handle is hein.journals/queen34 and id is 171 raw text is: The Myth of the Federal Spending Power Revisited Andrew Petter* The author revisits and updates his argument, made in 1989, that the federal spending power is unconstitutional and cannot be defended according to contemporary political justifications. At that time, he argued that the federal spending power could be attacked on the grounds of legal doctrine, constitutional values and realpolitik. The solution he proposed was a four-part program of constitutional reform, which would prohibit conditional transfers between governments, end the use of other conditional grants by federal and provincial governments, create a constitutional formula guaranteeing that current levels of equalization be maintained and enhanced, and make formal procedures for constitutional amendment more flexible. While the author remains concerned about the danger the spending power poses to federal and democratic values, he believes legal doctrine has been modified by recent case law supporting the spending power. He also notes that increased rigidity in the constitution in recent years has dimmed prospects for constitutional reform. The author concludes that this constitutional stasis will cause use of the spending power to rise andfall with changing political realities. Introduction I. The Case Against the Federal Spending Power II. The Federal Spending Power Revisited III. Prospects for Constitutional Reform Conclusion 7e life of the law has not been logic, it has been experience. - Oliver Wendell Holmes Introduction Almost twenty years ago, I published an essay arguing that the federal spending power - the power asserted by the federal government * Professor, Faculty of Law, University of Victoria. I am indebted to Marc-Antoine Adam for his encouragement, and to Maureen Maloney, Ally McKay and Murray Rankin for their helpful comments and suggestions. A. Petter

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