Hey, Jim! Where’s My Constitution?

I read in the current issue of the American Political Science Review that Canada does not have a written constitution. I am astounded! Where have I been living all these happy years?

Here’s the statement: “Relatively few countries today have unwritten constitutions – most notably the United Kingdom, Israel, and Canada.”

The author is James Fink and he has written what appears to be an engaging article entitled, “The Language of Liberty and Law: James Wilson on America’s Written Constitution,” APSR Vol. 103, No. 3 August 2009.

He points out that “even these exceptions [the United Kingdom, Israel, and Canada] have partially codified their constitutions.” I am not mollified.

Friends we haven’t been doing a good job at getting out the news! The Americans do not know about the British North America Act (1867).

It is true that in 1982 we changed the name of our founding document. (It’s now the Constitution Act, 1967.) That’s no excuse.

The APSR is arguably the world’s premier journal of political science. Articles are read by three referees. All must strongly approve. Fink thanks no fewer than ten colleagues for their comments and suggestions. The editors of the Review looked it over; in the preface to this issue they write about the article briefly but do not mention Canada.

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Glazer on Multiculturalism

On September 23 Nathan Glazer gave a lively talk at the university about public intellectuals: “Who loses and who wins; who’s in, who’s out.”

The next day he was back with a talk entitled “Living with Ethnic Diversity in the United States and Canada.” Glazer’s best-known book is Beyond the Melting Pot (written with Daniel Moynihan).

I note three points of interest.

1. Glazer disagrees sharply with Samuel Huntington. In Who Are We? (2004), Huntington contends that the recent wave of Mexican immigrants in the U.S. will not prove amenable to integration and may indeed threaten American freedoms. The “American Creed” (respect for individuals and the rule of law) flourishes only in a society dominated by English speakers and Protestants. Add too many Spanish-speaking Catholics to the population and the great American experiment will fail.

Glazer would have none of it. The Mexicans will be assimilated to the American way of life within a generation or two, following the pattern of previous groups.

2. He duly listed differences between Canadians and Americans on treatment of immigrants – in Canada governments play a bigger role – but concluded that all in all Canada is as much a “melting pot” as the United States, while U.S. immigrants are as likely as Canadians to retain the sense of their original identity.

3. Asked whether Muslims in Canada and the United States would resist integration, he maintained that they too would shortly adopt the prevailing political mores. About Muslim immigrants in Europe, he expressed less confidence.

Glazer and Coyne on Electoral Reform

Yesterday I went to a lecture by Nathan Glazer. Yes, the “renowned sociologist and public intellectual” – I’m reading from the university’s press release – is still on his feet; ancient, a bit hard of hearing but still able to give a punchy talk, still master of the current literature and yesterday’s newspapers, and still a pro at fielding questions. His topic, not surprisingly, was “Public Intellectuals, Then and Now.”

He came prepared to talk about Canada. Is Stephen Lewis a public intellectual? Margaret Atwood? Perhaps. Naomi Klein? Klein certainly ranks. On the international lists, she’s near the top. Michael Ignatieff? Can a public intellectual lead a government? There’s a famous precedent: Vaclav Havel.

But this being Canada, the question period soon turned to the subject of voter turnout. Canada’s turnout is low and getting lower. What should we do? Is democracy in decline?

Despite his handicap – he’s an American sociologist, not a Canadian political scientist – Glazer had a ready response. In his view, a low turnout indicates that people are not unhappy with the government’s conduct of public affairs. Should foreign invasion or domestic violence threaten, count on it, turnout will rise.

It’s an idea. Canadians should see out their low national turnout as an indication that that people are busy with their more or less satisfactory – and certainly engrossing – private lives. I’ll buy it as a hypothesis.

Today I turn to Maclean’s magazine (Sept. 28), where Andrew Coyne and Paul Wells are conducting an ongoing discussion of low turnout and electoral reform, perennial topics for both. Coyne recommends mandatory voting. Where are the libertarians when you need them?

Coyne has a point when he says that given a proportional electoral system the Bloc Québéçois “would not have anything like the stranglehold it has now.” I agree that there is something unsavory about making room for an anti-Canadian party in the Parliament of Canada. But should we fiddle our election laws to get rid of such a party? Change one of the country’s foundational structures just to oust an unpopular minority? I don’t think that’s wise. And it may not be necessary. The Canadian parliamentary system has humbled better minority parties than the Bloc. Think of the Progressives, the Farmers’ parties, the Social Credit. They were once powerful; they’re now history. Sooner or later Bloc voters will get tired of their chosen disenfranchisement.

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.