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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
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
I.   The Case Against the Federal Spending Power
II. The Federal Spending Power Revisited
III. Prospects for Constitutional Reform
7e life of the law has not been logic, it has been experience. - Oliver Wendell Holmes
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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