Constitutional Crisis Revisited

A year ago Canada was in the throes of a constitutional crisis. There’s been surprisingly little discussion of it in the weekend news. But the collection of essays edited by Peter Russell and Lorne Sossin (Parliamentary Democracy in Crisis; University of Toronto Press) remains a bestseller. Amazon.ca is bombarding me with notices.

Marcos asks for comments on the chapter by Jean Leclair and Jean-François Gaudreault-DesBiens. A glance at the footnotes turns up references to Tocqueville, Judith Sklar, Jeremy Waldron, James Madison, Alan Cairns. My interest is piqued.

But unfortunately, like other contributors to this volume, they conclude that Canadians should take last winter’s crisis as proof that constitutional reform is needed. Canada is suffering from a “democratic deficit.” It may be the old story. If you’re losing the political game, if the votes aren’t tumbling your way, demand an overhaul of the rulebook. But given more time, these authors, Leclair and Gaudreault-DesBiens, could probably do better.

Two observations: On page 112 they argue that, “The House of Commons is … no longer the place where regional issues will be debated.” But the House of Commons is not meant to be a place for debating regional issues. It was never meant to be such a place. As George Brown and George-Etienne Cartier envisaged it, the Commons was to be – exactly – an arena where regional issues were not tolerated. Brown says: “The questions that used to excite the most hostile feelings among us have been taken away from the general legislature and placed under the control of the local bodies [i.e., the provincial legislatures]” (Brown, Canadian Legislative Assembly, February 8, 1865).

Leclair and Gaudreault-DesBiens make the same complaint of the Senate; it does not fulfill its function “as a house of the regions.” But if the Commons was not meant to legislate on regional and particular issues, a fortiori, the Senate. Cartier wanted a solid and effective body of French speakers in both chambers. Securing an adequate number of Senate seats was a priority. But French-speaking Senators would not debate issues of particular concern to French Canadians as French Canadians. No, Cartier as much as Brown wanted to keep French Canadian matters out of the national legislature. He saw in federal union the prospect of introducing the degree of autonomy for French Canadians once hoped for from the Constitution of 1791. To repeat: French speakers in the Commons and Senate were not there to bring the affairs of French Canada to the attention of Parliament. They were there to keep the English from bringing in French matters. They would also, of course in company with representatives from every province, participate in the determination of the federation’s general affairs. (I say more on this matter in my Introduction to G.P. Browne’s Documents on the Confederation of British North America.)

Reprise: Russell and Popular Sovereignty

The Fathers of Canadian Confederation disavowed the idea that a political constitution must derive from the people: so Peter Russell contends. He offers in support of this assertion a phrase in a letter, dated October 25, 1858, from George-Etienne Cartier, J. J. Ross and Alexander Galt, to the British Colonial Secretary.

The letter urges the British to consider the benefits that would devolve on Britain from the union of the British North American colonies, and – very important – sketches a division of legislative powers as evidence that the colonists are seeking union in earnest. You may be sure that the letter of October 25, 1858 has interested historians and political scientists exactly because it contains this early draft on the subject of legislation proper to the levels of government.

Then comes the crucial passage: “It will be observed that the basis of Confederation now proposed differs from that of the United States in several important particulars. It does not profess to be derived from the people but would be the constitution provided by the imperial parliament, thus remedying any defect.”

Yes. The sentence can be interpreted to suggest that the constitution Cartier, Ross, and Galt are proposing does not acknowledge popular sovereignty. But if we accept this interpretation what are we to make of the fact that in a prior communication, September 9, 1858, Cartier, Ross, and Galt had already committed themselves to the idea that the Confederation document would be ratified by a free vote each provincial parliament. (See my blog of November 19/09.) No province was to be admitted to the union without that “yea” vote in the provincial parliament. The understanding was that in law, a parliament represents all individuals subject to its edicts.

Let’s look more closely at the letter of October 25, 1858. You can find it in G.P. Browne’s Documents on the Confederation of British North America, page 17; Section A, item 11. It’s marked “private and confidential.” “Private and confidential”? Just what was so confidential about this particular communication? In item 11, and in the covering letter (item 10), Alexander Galt uses a pseudonym; he appears as M. East. What’s going on?

Here’s my best guess. Cartier, Ross, and Galt know well that a provincial political party does speak for all the people in the province on any one political matter. Still less can a party profess to speak for all the people in determination of constitutional matters. A party does not represent the people’s will. A party – a part of the populace – cannot make a constitution or found a country. That much at least we can deduce from the idea of popular sovereignty.

As Ministers in the Government of the Province of Canada, our three letter writers could urge a course of action. They do that in item 10, where they recommend that the Imperial Government authorize a meeting of delegates from each colony to consider federation. But with the item 11, the letter that interests Russell, they have stepped over the line; they are now putting forward concrete recommendations for a new constitution. They are describing a division of legislative powers. They were well aware that such unilateral action by the Government of the Province of Canada would offend the Maritimers. And they were well aware that it would violate the principle of popular sovereignty. Constitution-making requires a formal and inclusive process of of drafting and ratification. Hence the air of confidentiality.

At Confederation there many who rejected the idea that a “yea” vote in the provincial parliament would suffice. There were many who demanded a provincial referendum. Or a head count. The rhetoric ran high. Here’s James  O’Halloran: “the people are the only rightful source of all political power.” Power derives from the people. Compare John Locke: “For no government can have a right to obedience from a people who have not freely consented to it.”

In the Legislative Council of British Columbia (the date is 1870; B.C. is considering whether to join the Dominion of Canada), E.G. Alston states: “I am not disposed to regret the occurrence of the difficulties in Red River, for it will teach the Canadian government, and all governments, that though you may buy and sell territories, you cannot transfer the human beings therein, like so many serfs and chattels, to a fresh allegiance with impunity; that the consent of the people must be first obtained; and that though the soil may be sold, the soul is free.” Does your heart rise as you read Alston’s words!

As I said last week, from 1864 to 1873 the question of popular consultation was the everlasting political topic of choice. The provincial legislatures were buzzing with furious discussions about better ways to obtain the people’s formal “yea,” or “nay.” It is quite simply wrong to say that the Fathers of Confederation disavowed popular sovereignty.

But let’s take a last look at the disputed passage in the letter of 1858. “It will be observed that the basis of Confederation now proposed differs from that of the United States in several important particulars. It does not profess to be derived from the people but would be the constitution provided by the imperial parliament, thus remedying any defect.” I know it is not a rejection of popular sovereignty; I know that arguments for consultation of “the people” are accepted by every last person involved in the making of the British North American federation.

But I have to admit that the wording of the last phrase is not clear. “Thus remedying any defect:” what does that clause mean? What defect? It may be that the Canadian Conservative Ministers have in mind that when or if in the course of time the new constitution proves to be flawed on one respect or another, it will be relatively easy to apply to the Imperial Parliament to amend the document. I think we need here someone who has an idea about “defects” in the American Constitution; indeed we need – we badly need – a comparative study of foundings – the Canadian and the American.

Peter Russell Wrong on Popular Sovereignty

Peter Russell’s new book, Essential Readings in Canadian Government and Politics (Emond Montgomery Publications) includes a letter dated October 25, 1858, from George-Etienne Cartier, J. J. Ross, and Alexander Galt, to the British Colonial Secretary.

In Russell’s opinion the letter proves beyond doubt that the Fathers of Confederation rejected – “disavowed” – the idea that a political constitution should be derived from the people. See Constitutional Odyssey, Can Canadians Become a Sovereign People? (Preface, and page 33).

But the letter does not show that the Fathers rejected popular sovereignty. Russell’s mistaken. He hasn’t read enough and what he has read he’s misunderstood.

Russell and I are at odds on an important academic issue. It’s not an antiquarian matter, of interest to historians only. As Russell himself will surely admit, we are quarrelling about something that affects the Canadian understanding of parliamentary government today, our understanding of individual liberties and indeed, our understanding of Canadian citizenship. If Russell’s right we’ll have to conclude that Canada got off to a bad start, and is still unstable. If I’m right we’ll conclude that we had a good start, that the Canadian Constitution is one of the political world’s great accomplishments, and that the future’s promising.

So. Russell or Ajzenstat? I’ll go first. I’ve set out my evidence in a couple of books: The Once and Future Democracy (2003), and The Canadian Founding, John Locke and Parliament (2007). I argue that the Fathers of Confederation and the legislators who discussed colonial union in the provincial parliaments all – all without exception – accepted the idea that a political constitution derives from the people. On this issue I truly do not think there was a single dissenting voice.

They disagreed about means to determine the people’s will. Some argued that a “yea” vote in the provincial parliament would suffice. (In law a parliament represents all who are subject to its edicts.) Others held out for a household vote (a referendum). But they all agreed on the important matter. No colony could join the union without the formal approval of its population. As I do not need to point out, some legislators favoured union and some did not. But whether for or against Confederation, all accepted the idea that the decision to unite had to be put to “the people.”

Now Russell: he offers just one piece of evidence. Just one! Mind you, it’s something of a zinger: it’s a passage in that letter of 1858 signed by Cartier, Ross and Galt.

Here it is: “It will be observed that the basis of Confederation now proposed differs from that of the United States in several important particulars. It does not profess to be derived from the people but would be the constitution provided by the imperial parliament, thus remedying any defect.”

Russell says of this passage that it contains “Perhaps the most haunting lines in Canada’s history” (Constitutional Odyssey, page 3).  You can read the whole letter on line if you have access to the Emond Montgomery volume. You will also find it in G.P. Browne’s Documents on the Confederation of the British North American Colonies. (Yes, the famous G.P. Browne volume that I’ve been touting on this blog!)

The letter Russell cites was part of an extended exchange between the colonial governments and the Colonial Office on the prospect for the federation of the British North American colonies, an exchange that ran from August to December of 1858. (Browne, Documents Section A, items 1 to 15 (pages 1-29). The letter on which Russell relies is item 11.

Russell did not consult Browne’s Docs. He did not read the entire exchange. He read only the one letter, which, as his foot notes in Constitutional Odyssey inform us, he found in O.D. Skelton’s Life and Times of Sir Alexander Tilloch Galt (1966).

If he had consulted Browne’s Docs, or Sir Joseph Pope’s collection of Confederation documents, Russell might have read the report of a Committee of the Executive Council of the Province of Canada, dated 9 September, 1858, recommending first, that delegates meet from the several provinces to consider the principles on which colonial union “could properly be based,” and second, that the report of such delegates be placed in the hands of the Governor and Lieutenant-Governor of each colony, in order that “he may lay the same before the Provincial Parliament with as little delay as possible” (Browne’s Docs, A, item 2). Note the phrase, “lay before the Provincial Parliament.” It was the opinion of that Canadian Executive Council Committee that in each colony the local parliament, representing the people of the province, had to approve. Confederation could not be fudged up by a meeting of Executive Councillors. To repeat: in each colony the local parliament, representing the people of the province had to approve.

We don’t know who was on that Executive Committee of the Province of Canada – or I don’t. But I’ll bet Cartier, Ross, and Galt were involved. They knew! They knew that the people as represented by the colonial parliament had to say “yea.”

And see Browne’s Documents, Section A, item 5, a memorandum, dated 29 September, 1858, from the Executive Council of New Brunswick to the Lieut.-Governor of the province. S.L. Tilley and his colleagues have been in touch with the Executive Council of Canada on the subject of “a Federative union of the British North American Provinces.” Tilly writes: “when the question of a Federal or Legislative union of the Provinces is formally brought before the people, it should be raised in such a manner … etc. Note, please, the phrase “formally brought before the people.” The expectation is that a committee of representatives will meet to draft the union agreement. But that agreement must then be “formally brought before the people.”

It’s interesting to see the British North Americans working out the process of drafting and ratifying a constitution! There’s more in Browne’s Docs, Section A, and Section B.  Consider Section A, item 10, which is another letter from Cartier, Ross, and Galt to the Colonial Secretary. Another letter from the same trio, Cartier, Ross, and Galt! It urges the Colonial Secretary to consider that that a Confederative union of the British North American colonies is in Great Britain’s interests, and concludes with this request: “that the Imperial Government be pleased to authorize a meeting of delegates on behalf of each Colony … for the purpose of considering the subject of a Federative union … and that the report of such delegates … should be placed in the hands of the Governor and Lieutenant-Governor of each Colony, in order that he may lay the same before the Provincal Parliaments with as little delay as possible.”

You may feel that a parliamentary vote does not suffice as indication that “the people” have consented. You are in good company. As I said above, the colonial legislatures were buzzing with furious discussions about better ways to obtain the people’s formal “yea,” or “nay.”

Russell maintains that at Confederation “there was not even sense that a constituent sovereign would have to be invented.” He’s wrong. From 1864 to 1873 the question of popular consultation was the everlasting political topic of choice.

The Citizenship Guide

Discover Canada: is it a Tory document?

The National Post is touting Discover Canada, the new study guide for immigrants, as a Tory production, the Conservative Party’s attempt to colour Canada Tory blue. John Ivson says it’s: “an incremental step in the re-branding of Canada into a conservative country, full of people more inclined to vote Conservative.”

It’s true that the new guide is one to make Conservatives swell with pride. But it should make anyone proud, including Liberals and NDPers.

It sets out what Canada expects of all citizens: respect for human equality, and obedience to the law. “Getting a job, taking care of one’s family and working hard in keeping with one’s abilities, are important Canadian values.” Volunteering, serving in the armed forces or the police, or local militias are recommended. Yes, Discover Canada depicts a country that makes demands on its citizens. It says to immigrants, in effect: step up with pride and play your part. Make your contribution.

The message seems to me to be entirely appropriate. What could be more welcoming than an invitation to participate in enforcing Canada’s laws? Or an invitation to defend the country in uniform? New comers are told that when called they must take their turn at jury-duty. Doesn’t that idea put out the welcome mat? To be expected to assist in determining a fellow-citizen’s guilt or innocence under Canadian law! Doesn’t it reinforce the idea of citizen-equality?

Last summer, Jason Kenney’s department sent me the old guide, A Look at Canada, issued by the Liberals in 1995. In retrospect it looks like a whimpy affair. It certainly listed fewer obligations. Newcomers were told that saving the environment was the Canadian thing to do; planting trees, tidying up, carrying out the garbage. Applauding Canada’s role as international peacekeeper. (I’m exaggerating slightly. The old guide did include a description of the Canadian Constitution, and a section on how to vote.)

Ivison refers to the new guide as a “bodice ripper.” I think he means that it’s something to make you sit up and pay attention.

Christopher Moore notes one big omission in the new guide and eight small flaws. The big one is the failure to list among our constitutional “realities,” the treaties that set out Canada’s obligations to Aboriginals. Consult Christopher Moore’s Canadian History blog for the small glitches; it’s good to see the indefatigable historian at work. But he concludes that on the whole, “Discover Canada is all right.” I agree.

Right-Wing Cabal?

Is there a right-wing cabal in this country?

Reviewing Donald Gutstein’s Not a Conspiracy Theory: How Business Propaganda Hijacks Democracy, Evert Lindquist does a stout job of arguing that business-friendly think tanks, and right-wing pundits who sound off in the public sphere are not part of a cabal. And they’re not anti-Canadian. They’re merely participating in democratic politics in the manner expected of democratic countries (Literary Review of Canada, November 2008).

I’ll buy that.

But it seems that the book’s author, Donald Gutstein, like Naomi Kline, Linda McQuaig, and others can’t shake the feeling that Canada should not be business-friendly. Canada’s supposed to be tolerant, of course; but from its beginnings this country was supposed to stand for an idea of the common good that is not markedly individualistic and business-friendly. That’s the usual argument. It follows that Canadians who are true to their roots, real Canadians with a sense of the Canadian identity,  will look askance at business–friendly think tanks, the “Calgary School,” neo-liberals, etc.

Gad Horowitz invented this notion of the Canadian identity in the 1960s, with a little help from his friends. There’s no truth to it. At Confederation there was no thought of embedding an idea of the common good. The Fathers did their best – they did what they could – to leave us a neutral constitution, one that would allow the contestation of political parties on an equal footing, and free debate on all political and economic issues. Socialists are not disadvantaged by our constitution. Nor are the right-wingers. Go for it, friends. Place your bets in the political game and play it out.

 

Peter Russell on Popular Sovereignty

I’ve said that historians, and political scientists with a historical bent should check out the Northern Blue Publishing Electronic Textbooks. northernblue@gmail.com.

The primary-documents textbook you do not want to assign is Essential Readings in Canadian Government and Politics, from Emond Montgomery Publications, edited by Peter H. Russell, François Rocher, Debra Thompson, and Linda White. The commentary has an unfortunate, know-it-all, patronizing tone.

There’s a puzzling thing about Russell’s commentary on the Confederation debates in this volume. (We’re given only the Province of Canada debate, and very little of it at that: excerpts from Macdonald’s and Cartier’s introductory speeches.) The puzzling thing is this: We are not told why the debate was held.

Was the parliament of the Province of Canada merely passing the time of day, discussing in an offhand way the Confederation document that had been drawn up at Quebec the previous fall?

No; as early as 1858, the matter of obtaining formal expression of popular consent to the union of colonies had been discussed between colonial elites and the British Colonial Office. And at that time it had been decided that the requirement would be satisfied by a majority vote for union in each colonial parliament. No province could be yanked into Confederation without a yea vote in the local parliament. The issue had to be “formally brought before the people.” (See G.P. Browne’s Documents on the Confederation of British North America, No 5; page 4).

Russell cannot tell us why the debate was being held because, as we know from his classic work, Constitutional Odyssey, Can Canadians be a Sovereign People? he long ago convinced himself  that at Confederation the issue of popular consent was not raised. The Fathers of Confederation thought the requirement to obtain the people’s consent was “anathema,” That’s Russell’s term, “anathema.” According to Russell there was no concept of popular sovereignty at Confederation. But Russell’s wrong.

In due course (1864) the colonial elites met at Quebec to draft the union document; they were then required to return to their provincial parliaments to put the necessary ratifying resolution. And that’s when the fireworks started. In each province, as soon as the ratifying resolution was tabled, fierce debates broke out. Not all members could be persuaded that a parliamentary vote would suffice as expression of popular assent. There would have to be a household vote, that is a referendum.

In a short note I cannot discuss the ramifications of those fascinating quarrels in the provincial parliaments. The important point is that all participating, all without exception, were convinced that “the people” had to be consulted. The quarrels were about how to consult “the people.”

The Northernblue Electronic Confederation

Want a Canadian politics text that’s loaded with primary documents? Alastair Sweeny’s History of Canada Online might be it. That’s from Northern Blue Publishing Electronic Textbooks. I took a look at the section entitled The Path to Union 1864-67. Worth investigating, I’d say. northernblue@gmail.com.

There’s a “resource” entitled Newfoundland Debates on Confederation. I want to get that open. I remember the trouble we had recovering the Newfoundland debates when we were assembling Canada’s Founding Debates (University of Toronto, 2003).

I’m still publishing in the old fashioned way. G.P. Browne’s Document on the Confederation of British North America is out! (McGill-Queen’s University Press.) It’s the old Carleton Library edition of 1969 – every precious word, page for page – but larger, properly leaded, readable, on ancient-forest free paper. Paul Romney says that my Introductory Essay is “trenchant.” I’m taking it as a compliment.

The Wild Rumpus and Other Preoccupations

The academics I know are talking about the movie made from Maurice Sendak’s book for children. I type Where the Wild Things Are into Google and quick as a wink turn up academic articles on the book. The first one I open has three authors, notes, tables, the whole scholarly apparatus. But in our household today – and in most others, I guess – it’s the movie that’s on the agenda.

• S. The Wild Things? The book is perfection.

• J. And the movie?

• S. Enjoyable, lovely to look at.

• J. Not perfection?

• S. Perfection is an underappreciated virtue these days.

The younger generation is talking about Sudoku for two. Two persons working on one puzzle, filling in the squares, giving reasons for their decisions. I’m intrigued. Two people, two pencils. (Who gets to wield the eraser?) Two bending over one small piece of paper. In one armchair? Hmm. Sounds cozy!

The great leaf show is on. In the mornings we rush to the windows to see the new developments in the park across the road.  Today I hear that my neighbourhood association is proposing to build tennis courts in the park. (That is, they’re demanding that the city build courts.) The problem is that tennis courts require high mesh fences. The gorgeous long view through the trees from our front windows and front porch will be obscured. I don’t know what to do. Should I summon up reserves of indignation (running low as I get older) and fight it out at the upcoming meetings? Or smile through my tears and wish the health buffs well? They tell me that the pavement will be coloured a pleasant green. To blend in, you know. The mesh fence will be green.

C.B. Macpherson Prize

The Canadian Political Science Association has announced the ninth biennial competition for the C.B. Macpherson Prize: “The prize was established to honour the life and work of Crawford Brough Macpherson (1911-1987), an internationally renowned teacher and scholar of political theory who served as University Professor at the University of Toronto. The Canadian Political Science Association seeks to encourage the ideals of scholarship represented by this great Canadian political scientist.”

Yes. Macpherson was an eminence. I can understand why the CPSA felt no need to remind us that he never relinquished his admiration for Soviet and African totalitarianisms. I can understand that they did not feel required to point out that he believed these forms of representative democracy as good as or indeed superior to Canada’s liberal democracy. It cannot appropriate to raise such matters in the short biography of a great political scientist.

Banish from your thoughts the millions of state murders in the African one-party democracies and the millions upon millions of state murders in the Soviet Union.

I remember an occasion in the late 1970s on which Macpherson was describing the signal features of the Soviet system. I was then well into the research for my doctoral thesis and steeped in Lord Durham’s account of “responsible government,” the constitutional principle that requires the party in office to answer to the majority in the elective chamber of parliament. As Macpherson continued his exposition of representative soviets, the question was on my lips: “How is the government of the Soviet Union made to answer for its decisions?” But I said nothing. Nor did anyone else in the crowded lecture room.

Frank Cunningham’s book on Macpherson’s political thought is expected soon. It is one to watch for.

Moore Live-blogging the Quebec Conference

Don’t miss this, friends. While I’ve been swanning around, going to the theatre, walking in the fall woods, someone has been minding the store.

From October 10th, Christopher Moore has been live-blogging from the Quebec Conference of 1864! It’s great stuff. I think there’s a book in the works.

http://www.christophermoorehistory.blogspot.com/