Readings on Canada: New Collection

I’m sent notice of a collection of primary documents on Canadian politics with a strongly historical dimension. (Thanks, John von Heyking.) Essential Readings in Canadian Government and Politics, edited by Peter H. Russell, François Rocher, Debra Thompson and Linda White will appear later this year from Emond Montgomery Publications.  A version is available on the Internet

My heart lifts. There’s no better way to engage students than to give them original sources. (Hamlet’s more fun than Coles Notes.)

The editor’s introduction is a bit of a stopper. “Canada has never been an easy country to understand.” That’s the first thing the students will read! Is it the most important thing to know about Canada that our history’s difficult? I don’t know why Russell and company didn’t go all the way and give us the usual line: Canada is difficult and boring.

But then we’re off to the races with speeches by John A. Macdonald and George-Étienne Cartier in the debates on Confederation in the Province of Canada (1865).

Say the editors: “In their speeches we can see the colonial nature of Canada’s beginnings. Macdonald and Cartier share a strong allegiance to the British monarchical system and an equally strong distaste for what they view as the excesses of American democracy.”

Distaste for the U.S? Macdonald’s speech includes this assertion:

“It is the fashion now to enlarge on the defects of the Constitution of the United States, but I am not one of those who look upon it as a failure. (Hear, hear.) I think and believe that it is one of the most skillful works which human intelligence ever created; is one of the most perfect organizations that ever governed a free people. To say that it has some defects is but to say that it is not the work of Omniscience, but of human intellects.

He’s saying that only God could have done better than the American Founding Fathers! Not much “distaste” there. Did the editors read the speech?

It is true that Cartier and Macdonald preferred the British monarchical system. They were convinced that a good constitution makes a distinction between “head of state” (in Britain and Canada, the monarch) and “head of government” (in Britain and Canada, the leader of the party winning the most seats in the popular house.) From 1688 political wisdom held that the distinction ensures the contestation of political parties for office and thus the best possible guarantee of political freedom. Cartier especially thinks that allotting monarchic and prime-ministerial powers to one individual as in the American system invites populist tyranny.

He was wrong. Time has shown that American presidents have less trouble than anticipated in juggling their two roles. The point to note, however, is that the Canadian Fathers were not expressing mere opinion, or unthinkingly choosing the familiar over the foreign. They had an argument. To repeat: they thought that the contestation of political parties for office offers the best security for political freedom and believed that contestation is better secured by separating the roles of Prime Minister and Head of State.

Generations of Canadian professors have told their students that the Canadian Fathers were no competition for the Americans in the brains department. The prim commentary on these speeches upholds the tradition. Canada is hard to understand. The Fathers of Confederation were hicks. Why bother to read the stuff? (Answer: it has been assigned.)

There’s more. The editors contend that the Province of Canada was “the only one whose legislature conducted a full, detailed debate on the terms of the proposed federal union.” But in a collection of excerpts we can’t of course have the full detailed debate. The debates in the other provinces were perhaps less “full,” whatever “full” means, but they were, believe me, quite as interesting, vivacious, and well informed. So why did the professors at the University of Toronto go out of their way to impress on students in British Columbia, Newfoundland, Prince Edward Island, Nova Scotia and New Brunswick that the debates in their home locales weren’t important enough to make the cut? The Centre of the Universe is speaking.

Will I go on reading this volume? Of course. I’m enjoying it.

The Spending Power: Cooper v. Crowley

Is the spending power legal? We have a debate going on this blog. Barry Cooper contends that federal governments are acting illegally when they fund public projects in areas of jurisdiction reserved to the provinces in the Constitution Act (1867).

(Think about it. Should the feds be paying into provincial health schemes? Should they be funding those Canada Research Chairs? According to the Constitution, “health” and “education” are provincial matters.)

By spending in areas of provincial jurisdiction the federal level of government is intolerably meddling in provincial affairs, eroding the 1867 Constitution and impairing principles of political accountability that are the pride of parliamentary systems. That’s Cooper’s view. See last week’s blog, “The Spending Power: Explain!”

Brian Lee Crowley begs to differ. He has entered an invaluable comment on last week’s blog. “Ottawa uses the spending power to make gifts (with or without conditions attached) to people or organizations or provinces, something one can reasonably argue is not excluded by a distribution of legislative powers.” (My emphasis.) To repeat: while the Constitution Act (1867) does not allow the federal government to legislate in provincial fields, it does allow gifts of money to provinces. Thus we conclude that the spending power is legal.

Instead of getting exercised about the spending power, says Crowley, Canadians should be using regular political channels to demand better performance from both levels of government.

So, that’s it. Pick your pick and choose your choice.

I’ll add that in their formulation of the division of legislative powers for the new federation, the Fathers of Confederation advocated what later comes to be called the doctrine of “watertight compartments.” (That’s not their term; but it’s what they meant. The term was used by and was perhaps invented by the British Law Lords.) The notion of watertight compartments clearly prohibits the federal level from legislating in provincial fields. The question is whether it also prohibits spending in provincial fields. (Where is Alexander Galt when you need him? In the history books. I should get back to work.)

Here’s one document that provides a clue:

In a letter of 1858, marked “private and confidential,” and intended for the perusal of officials at the Colonial Office, Tories in the Province of Canada roughed out a list of the powers to be allowed “the Federal Government” in the event of British North American union. To it they appended this observation: “the Local Legislatures [the provinces] would not be in a position to claim the exercise of the same sovereign powers, which have frequently been the cause of difference between the American States and their General Government.” Much could be said about this statement, but it does indicate that the letter writers (among them Cartier and Galt) were watching the American experiment closely, and had concluded that a muddling of powers threatened in federations and was to be avoided.

Consider also that in the debates on Confederation in the Legislative Assembly of the Province of Canada, George Brown and George-Étienne Cartier argued at length that the general government of the federation should legislate only on matters of equal concern to each and every individual in the union; the general government, the Parliament of Canada, was to be neutral; it was to take no interest in the particular citizen’s “race,” country of origin, religion, history, etc.

Brown and Cartier would be appalled by the idea of a department of multiculturalism at the federal level. They would be horrified at the sight of today’s crowd of particular interests besieging Parliament for group preferences, distinctions, and money, money, money.

The Spending Power: Explain!

If the professor’s asking and you say, “Well, I mean, the federal government, like, ah, whatever,” you have a pretty fair understanding. You’ve grasped the essentials.

Barry Cooper’s It’s the Regime, Stupid (Key Porter, 2009) fills in particulars. I recommend it. There’s no index – pity! So let me tell you that the crucial pages are 186 and 187. The whole of Chapter Five is devoted to the spending power and would make a good addition to a course pack. Pages 186-7 are electrifying.

The spending power allows the federal government to fund programs in areas of provincial competence. It seems to have been the invention of one man, F.R. Scott, “a centralist, socialist, and formidable opponent of the government of Quebec” in the 1950s. He pulled it out of his hat, with a few distracting references to the common law of unitary states and principles of human generosity. Here’s Scott: “Because one type of government alone has jurisdiction over a class of subjects under the B.N.A. Act, does not mean that the other may not make gifts to persons whose activities fall into that class.” (“The Constitutional Background of Taxation Agreements.” McGill Law Journal, 2 (1955) 1-10.

As Barry says, the assertion has an air of unreality. Expenditures are related to taxation. “By long-established law, Parliament cannot raise taxes for provincial purposes and it therefore would be consistent that it not spend for provincial purposes.” He refers us to Andrew Petter, “Federalism and the Myth of the Federal Spending Power.” Canadian Bar Review, 68 (1989), 448-79.

I’m convinced. The spending power erodes the constitutional division of legislative powers enshrined in the Constitution Act (1867) and impairs principles of political accountability ensured by parliamentary responsible government. Its introduction in the 1950s launched Canadians on a decades-long bender of free spending and big spending that still has our heads spinning. And not least, it has, as Barry explains, encouraged a sense of dependence on the federal government, and – because dependence breeds disappointment – promoted disdain for Parliament.

Final word: don’t miss Barry’s summary of the Canadian adventure that was the Gomery Commission (Chapter Six). Another one for the course pack.

Self-Satisfied Whiggism

Jonathan Swainger of the University of Northern British Columbia knows me. I don’t believe he’s met me or read any of my books. But he knows my arguments and he thinks they are passé. They’re “old fashioned.”

He writes: “There once was a time when Canadian history undergraduates were expected to navigate through at least one course dedicated to Canada’s constitutional development. Admittedly, these surveys were often tinged with a self-satisfied and whiggish celebration of the nation’s attainment of responsible government and, in time, political, military, and judicial independence, all within the benevolent ambit of English constitutional governance. Thanks in large part to the waning of ‘old-fashioned’ political history, these surveys have all but disappeared and one suspects that few students are saddened by the retreat.”

I’ve been saying it for years! Candians used to study their constitutional history and now they don’t. They used to read about the struggle for responsible government and the overthrow of the colonial oligarchies: the Family Compact, the Chateau Clique, government by “official party” in the Maritimes. They used to study the growth of Canadian independence in the world of nations. No longer.

By Swainger’s lights, I’m a “self-satisfied” whig. I’m “old-fashioned.” I love it. Overturning oligarchy and establishing parliamentary democracy is cause for satisfaction, I’d say. Promoting and defending the independence of a free country is reason to celebrate.

And I’ll bet there are students today who would like to know how the these things were done. Is there a formula? Supposing there’s a formula, is it the kind of thing that works only for some peoples and some cultures? Can it be adapted for use in the twenty-first century?

Swainger’s sanguine about the “waning” of old-fashioned political history. I say that we should bring it back, and begin to ask some old fashioned questions.

Professor Swainger made his remarks in a review of John T. Saywell’s The Lawmakers (Canadian Historical Review, 85-1 2004)

Summertime Diversions

• The book sale is over. We’ve packed up the unsold volumes. And we’re ready to begin buying again! Two members of the family are off to the local second-hand book room this very afternoon. There’s a nifty set of Susan Cooper’s fantasies for children, The Dark is Rising. Boxed. In good condition. There’s a set of stories about King Arthur by Rosemary Sutcliffe. Three volumes. Good condition. Every household should have them and I’m sure ours once did.

• Two new books have arrived from Key Porter, via Amazon. One is by Barry Cooper. Brian Lee Crowley’s book about Canada is out. It’s called, Fearful Symmetry. The gall of the man! You need a lot of chutspah to use that title! And where I may ask is Janet’s copy! Promised, but not yet here.

• We watch the television series Lost in Austen. It’s grand. It’s so clever. We had a video and could see all the episodes in an evening. We’ll watch it again. Elizabeth Bennett and Amanda Price swap places. Price is a young woman from 2009 who has been reading Pride and Prejudice since she was fourteen. (I’m not going to give the story away but wait till you see Mr. Darcy in twenty-first century London!

• Political philosophy alert: The script is larded with references to Jean Jacques Rousseau. Did Austen read Rousseau? Yes. Google assures me that Rousseau’s Emile, and La Nouvelle Héloise were read, sometimes in French, often in translation, by all the young ladies of Austen’s period who had literary pretensions.

• Now think of two aging professors watching this delicious show. What’s going through their minds? Course outlines, book lists, essay questions. Is it a one-term course? The central question is this: does reading fiction fit a person for the moral life? Or does it pervert you by inculcating impossibly utopian ideas about society and man? In the Emile, Sophie, the darling and carefully reared young woman intended for Emile, is forbidden to read novels. But she does. Ha! Ha! She reads Bishop Fénelon’s Télémaque and falls in love with the young hero; no modern man can compare. Her soul swells with longing. Who would have thought that a bishop could write a corrupting novel? (It’s about the adventures of Odyssey’s son, searching for his father in the company of his tutor, the goddess Athena in disguise).

• We’re like elderly battle-trained horses that hear the war trumpets. We’ll teach the Emile, certainly. Book V, at any rate. Mary Wollstonecraft’s defence of Rousseau in The Rights of Women? Fénelon on women’s education? In alternate years, perhaps. Pride and Prejudice. Lost in Austen. The Télémaque, of course. But then I remember that I put my copy of Télémaque, en français, in the book sale. And it sold.

Researching First Nations

Canada’s major granting agencies, including the SSHRC, are overhauling their guidelines governing research on human subjects. Rhoda Howard-Hassmann, Canada Research Chair in International Human Rights at Wilfrid Laurier, comments on the proposed guidelines for research on Canada’s First Nations. (My thanks to Rhoda for forwarding this critique.)

[The section on Aboriginal Peoples] is by far the most problematic of the draft document. It is suffused with assumptions about the nature of aboriginal society and aboriginal knowledge that may very well not be accurate. It is, moreover, the only section of the document that seems to directly deny researchers the right to academic freedom: article 9.5 (p. 99), for example, states that First Nations people have a right to control all aspects of research that affects them, directly undermining academic freedom.

“Aboriginal knowledge” is used throughout this chapter without explanation as to what it is. As far as I can determine, it refers not only to statements of fact that are empirically verifiable according to normal scientific standards, but also to aboriginal beliefs and myths. For example, at p. 105, lines 3673-76, we are told that aboriginals objected to a genetic research program that challenged their “knowledge” about their identity. There is no suggestion here that this knowledge might be inaccurate. Academic freedom implies that any researcher can investigate anything an individual or a group claims to be its “knowledge”; we do not, for example, protect non-aboriginal Christians who insist on the empirical accuracy of their Biblical origin myth from academic inquiry into it, even if falsification of such a myth might undermine their Christian identity.

Lines 3853-54 p. 110 in the chapter on qualitative research state that “Knowledge…is treated as socially constructed.”  Yet we are enjoined in the chapter on aboriginal peoples to assume that knowledge is immutable, non-malleable, and not socially constructed.

There are also questionable statements of fact in the chapter on aboriginal peoples. What is the source of the statement on p. 101, lines 3508 ff, that traditional leadership structures are legitimate while leadership established under the Indian Act is not? Is this always the case?  This statement appears to present as fact particular ideological or political beliefs about legitimacy in aboriginal communities.

Furthermore, the injunction not to conduct research on aboriginal peoples which could result in stigmatization of whole communities could result in both denial of academic freedom and non-generation of research findings that might have a beneficial effects on aboriginal or non-aboriginal populations in the longer term. “Stigma” is a loose term; what one individual or group considers stigma another might consider necessary scientific information. If, for example, a particular indigenous population suffers from a disproportionately high rate of HIV/AIDS or tuberculosis, this could be considered by some people as stigmatizing and by others as information that a particular health, social or economic problem requires immediate remedy.

Along these lines, as well, why should researchers always avoid deepening divisions in a community? (p. 101, line 3523). Sometimes it is a good idea to deepen a division. Would we advise researchers on caste divisions in India, for example, to avoid conducting research that might make clear to Dalits their subordinate position in society? This injunction seems to deny to aboriginal individuals the autonomy that the draft claims is one of its key principles. Aboriginal individuals are not supposed to be allowed to think in ways that might deepen the divisions among them, although non-aboriginals are permitted to think that way.

This chapter is suffused with a very strong stress on aboriginal communities, as if they are consensually-based entities without divisions according to status, wealth, gender, or other such criteria—unlike any other community anywhere else in the world. While I agree that the interests of aboriginal groups must be protected, given their long suffering under colonial and assimilationist policies, there must be some statement that aboriginal leaders or elders do not have the right to veto research in which individual aboriginals might be interested in participating. With regard to Article 9.2, for example, the possibility of not engaging with the community in some situations must be allowed; for example, if all the community leaders are members of extended family x, and do not want extended family y’s circumstances to be investigated, the researcher must be permitted to circumvent the community leaders and go directly to family y. With regard to Article 9.4, the statement that in no case can community consent substitute for individual consent should be supplemented by a statement that in no case may community representatives block researchers’ access to individuals who wish to be research participants despite community disapproval.

As a minor matter, regarding Article 9: 13, p. 106, why do aboriginal communities have to share in the costs of research?  No other community of research participants is required to pay part of the cost of the research. What is the Panel getting at here?

In sum, if the principles of academic freedom are to apply to all other research except research about aboriginal communities, then this should be clearly stated so that researchers on aboriginal matters know they are operating under a different set of rules than they are used to. Moreover, if individual aboriginals are to be denied the autonomy that all other competent Canadian and other adults are assumed to enjoy, that should also be clearly stated.

This’ll Be The Day That I Die

Life’s flashing before my eyes. My heart’s pounding.

Don’t worry. It’s the day of our household Book Sale. We’re carrying cartons of books, and yes, it’s exhausting. But we have help.

In every carton, memories! I pull out a slim pamphlet dated September 1970. It’s the Hamilton People’s Monthly, “an alternate press growing in response to the failure of the commercial media to unearth and provide essential information.” Selling for 15 cents then. And 15 cents today, if we’re lucky. From the back cover: “Read an opposition paper … or better yet, start one.”

Well, that was our radical past. Women’s Liberation, Workingman’s Rock Music, Toronto’s Just Society Movement.

Digging deeper: H.A. R. Gibbs Mohammedanism; Philip K. Pitti, Islam and the West; Wilfred Cantwell Smith, Islam in Modern History; G.E. von Grunebaum, Modern Islam, The Search for Cultural Identity; and Hamilton A.R. Gibb, Studies on the Civilization of Islam. That’s what curious and responsible people were reading in the late 1950s and early sixties.

And deeper … Mrs. Carlyle. A play. A high school text! It was my introduction to John Stuart Mill. We’re given the episode in which Mill has to report the accidental destruction of Carlyle’s manuscript, The French Revolution. And I remember now, Jane Carlyle is the “Jenny” of Leigh Hunt’s poem, “Jenny kissed me when we met; Jumping from the chair she sat in.”

Time you thief who love to get
Sweets into your list, put that in.
Say I’m weary, say I’m sad;
Say that health and wealth have missed me;
Say I’m growing old, but add – Jenny kissed me!

It’s a small sale. Probably no more than five or six hundred books  on the lawn. Children’s, Crime, Politics, Poetry, Philosophy, History.

The sun’s coming out and we are going to be a success.

Who’s Calling Frances (2)

Who’s calling Frances Widdowson? Not the Canadian Political Science Association Women’s Caucus.

Her e-mails to Caucus go unread.  Replies are inadequate and excuses are lame. “We’ve been out of the office.” “Our e-mail broke down.”

“Our e-mail broke down”???

I think it’s the old story. They want Widdowson to go away. Call it a day. Bury her head in the sand.

Widdowson’s arguing that someone in the Women’s Caucus has been calling her a racist. Someone’s  saying that her work on aboriginals is unprofessional and that the paper she presented to the Political Science meetings at the Congress of 2008 is “offensive. ” She wants names. She believes that her professional reputation is at stake and she wants a chance to confront her detractors. I don’t think she’s going to give up.

Who’s Calling Frances?

Who’s calling Frances Widdowson? She and co-author Albert Howard are being courted by the political right. In conservative and libertarian circles, they’re everyone’s favourite Marxists.

Peter Foster of the Financial Post finds their argument compelling (July 2, 09): “The authors note that criticism of lousy policies that support dysfunctional lifestyles [on aboriginal reserves] is inevitably screamed down — as this book has been — as ‘racism’ or ‘cultural genocide,’ but suggest that this is primarily because their end would mean a stop to legal and consulting fees, and the huge network of sinecures run for, and by, a nepotistic system of chiefs and councils who have been thoroughly co-opted.”

Last February the National Post ran full-page excerpts from Disrobing the Aboriginal Industry on four successive days. Jonathan Kay’s column (February 3) lauded the authors for exposing the “enormous ideological gulf between classic leftism and the Aboriginal Industry it supports.” Here’s a sample: “From the civil rights movement onwards, progressive forces in our society have weaned us off the toxic notion that a person’s race dictates the content of his or her character. But this enlightened attitude is willfully discarded in the case of natives, who are imagined to be inveterately enlightened environmentalists, pacifists and … socialists. This racist conceit is in turn used to justify segregation – since any other policy would expose natives to the pollution of white values.”

Who’s Using The Courts Now?

Before the Supreme Court of Canada hearings on the gay-marriage reference in the fall of 2004, a spokesperson for the gay rights movement was already boasting of victory. It had taken twenty years of hard work to get the issue before Canada’s highest court, he said. “What we’re talking about is the culmination of decades of work by many, many people …  bit by bit, law by law.” There were few successes at first, but as cases mounted the breakthrough occurred, initiating “a steady winning streak” (Janice Tibbetts, “Gay Activists Predict Victory,”  National Post 6 October, 2004).

Should the courts be used in this fashion? Should they be a venue for making public policy? What’s happened to the idea that crucial issues of policy should be determined by our representatives in Parliament and provincial legislatures?

Forget this question for the moment.

Let’s consider the fact that until recently the deliberate attempt to use the courts as policy venue appealed primarily to groups on the political left.

Now the political right is interested. It’s an effective way to get things done. Why should conservatives hang back?

In the Chaoulli Decision (2007), John Carpay of the Canadian Constitution Foundation effectively challenged Canada’s health care monopoly. According to Wikipedia, the ruling has brought much of the current Canadian public health system into question.

Why should libertarians hang back? MP Scott Reid and MPP Randy Hillier, both from Lanark County, have founded an organization, appropriately called the Lanark Society for the Advancement of Democracy, Property and the Common Law, to help elected officials of a libertarian or classical liberal bent to take “projects to expand the cause of freedom” beyond the conceptual stage. The goal is to identify policy ideas and to put them into action, “whether in the form of draft legislation, a regulatory change, or a court action.”

The Lanark Society. Sounds interesting! A society devoted to expanding liberty is welcome. Needed!

There’s one worry. What’s intended by “court action”?

I understand from the prospectus that as an immediate project the Society is thinking of “constitutionalizing” property rights. But what does that entail? Are they proposing to amend the Charter? Are they proposing to give our greedy judges a juicy new “right” to interpret?

Traditionally, courts protected citizens from government; they carved out an area of rights, which defined the citizens’ freedom. No longer. Activist courts interpret Charter rights to extend government’s reach, shrinking freedom. To my mind conservatives and libertarians should be wary of policy-making via the courts. But I’m sure the Lanarkists will think things through.