The cause of the bill on the “sovereignty of Alberta in a united Canada” is heard. This one, whose title recalls a famous monologue by Yvon Deschamps, is rightly undergoing a first-class burial, both in academic circles and in the media and politics. Even the former Conservative premier of the province Jason Kenney does not hide his disbelief at this legislative expedient. The new government in place in Edmonton, like a freeman of the landthinks he has found the loophole in the Constitution of Canada that would allow a province to evade federal laws according to its mood of the day.
The essential content of the bill is based on the idea that the province could evade federal laws that it dislikes while respecting the Constitution. The Legislative Assembly of Alberta may direct provincial authorities or entities to take action in response to a federal initiative that is deemed, in a purely political judgment, to be unconstitutional or detrimental to Albertans. The exact nature of the measures that could be taken remains unclear, but the issuance of directives requiring action in contravention of the federal initiative is envisaged.
Clearly, this proposal goes against the basic principles of federalism and Canadian constitutional law.
These have been forged through the practice of political actors and the decisions of the courts, not only in Canada but also elsewhere, where the federal idea has developed. This is particularly the case of the United States, whose experience with the federal system is older. The Alberta bill thus echoes the Nullification Crisisan important precedent in the construction of the principle of federalism.
The thesis of Nullification
The crisis originated in the refusal of the South Carolina government to allow the collection of the federal customs tariffs of 1828 and 1832 on its territory. The declaration of nullity of the federal tariffs adopted by the State was explained by the anticipated economic effects of the American tariff policy, which would hit hard the imports of agricultural machinery by the States of the South, while protecting the manufacturing industry of the States North. The constitutional thesis underlying the South Carolina measure was that any US state could undo a federal measure that goes against its fundamental interests. The main proponent of this so-called thesis of Nullification was John C. Calhoun, senator and vice-president of the United States originally from South Carolina, fierce defender of slavery, but also a theoretician of federalism.
His thesis was based on the idea that the federal government was the creature of the American states and that the latter, consequently, retained a right of scrutiny over its action since it derived its ultimate legitimacy from the consent of the states. President Andrew Jackson responded to the declaration of nullity of the tariffs with a proclamation to the people of South Carolina intended to protect the Constitution of the United States. The tension was at its height when an armed confrontation was foreseen, since Congress had authorized the president to use force against the recalcitrant state, which had begun to form a militia for him to defend itself. Conflict was narrowly avoided by a political compromise, but the Nullification Crisis remains one of the precursor events of the Civil War.
Equal political legitimacy
This crisis made it possible to bury the constitutional thesis of the Nullification. It has helped establish a fundamental principle of federalism, according to which federal laws and the laws of federated entities enjoy the same political legitimacy. They are both passed by a Parliament elected by the population and apply directly to the latter and to the territory of the State. This principle applies to both the United States and Canada.
The Alberta bill in 2022 resuscitates the thesis of the Nullifiers Americans of the pre-Civil War era. Ottawa’s timorous reaction to this initiative may come as a surprise. Never, even at the height of the sovereignty movement, has a Quebec government flirted with the thesis of Nullification. While it is distressing that Alberta does this, its bill is so stupid that it deserves less to be denounced than to be ridiculed.