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.

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.”

12 Responses to “Peter Russell on Popular Sovereignty”

  1. 1 Christopher Moore November 5, 2009 at 5:37 pm

    Janet, one minor quibble. It wasn’t so much “the colonial elites” that met at Quebec in 1864, it was delegates chosen from the colonial legislatures of BNA. Just a bunch of MPs, some not very elite at all, except for being the people’s elected representatives!

  2. 2 janetajzenstat November 8, 2009 at 6:31 pm

    Thanks Chris. You are right. I haven’t paid enough attention to the debates in the legislatures about choosing the delegates to Charlottetown, and Quebec. Readers: please remember to check out Moore’s 1867.

  3. 3 Colin Pearce November 13, 2009 at 1:09 pm

    In Re: Popular Sovereignty

    It is a matter of no small moment that Professor Ajzenstat takes Professor Russell to task for his obliviousness to the place of popular consent in the process of Confederation. “(A)s early as 1858,” Professor Ajzenstat reminds us, “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.” Indeed, “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).”
    We are certainly gladdened to learn from Professor Ajzenstat that Professor Russell’s confidence that “The Fathers of Confederation thought the requirement to obtain the people’s consent was ‘anathema’” is completely misplaced. Professor Ajzenstat rejects outright Russell’s notion that “there was no concept of popular sovereignty at Confederation.” Professor Ajzenstat’s main point here 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.’” Such then is the basis of a historiographical case that would see Canada as always having been a modern, liberal democratic country in its deepest intention.
    But there is a question of “relativity” here. While Professor Ajzenstat’s case for Canada’s basis in popular consent is attractive in the extreme compared to the “Russellian” alternative there remains the difficulty that nowhere in any Canadian public document do we see the phrase “We the people of Canada, in order to secure the blessings of peace, order and good government to ourselves and our posterity, do ordain and establish this Constitution for the Confederation of Canada.” Even the Canadian Charter of Rights authored over a century after the “old days” of Sir John A. and the Empire makes no mention of the Canadian people in its opening phrase: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.” Indeed, this phrase is more reminiscent of the “Dei Gratia” on the coins than it is of the ultimate authority of the Canadian people.
    Very well then, there is no “official” declaration of the sovereignty of the Canadian people over all matters foreign and domestic in the Canadian constitutional tradition. But for all that it is certainly there albeit in a more “implicit” and “parliamentary” way. At bottom it is a question of constitutional “nuance” but the sacred principle at stake remains the same. But what are the actual historical and political consequences of this difference in constitutional “explicitness”?
    Let me suggest one thing for the moment which is that the United States Constitution has been amended twenty-seven times including the 17th Amendment enacted in 1913 providing for the direct election of Senators. Meanwhile, although the Canadian Constitution has certainly “evolved” to keep abreast of a changing world it has proved unreformable in the decisive respects. But more contemporarily one might ask: “Why is it that certain issues ‘die’ or disappear from the political and electoral debate in Canada – for example capital punishment, abortion, immigration – while they remain ‘live-wire’ issues south of the border?” On the other hand why do some issues remain “live-wire” issues in Canada which play a minor role in the U.S. such as regional alienation and barriers to an integrated economy? Could it be that the absolute sovereignty of the people in the United States has something to do with this? Could it be that the elected leaders in the U.S. have more to fear if they defy the sentiments of the people than their counterparts do north of the border? Could it be that Canada has evolved into an “administrative-consensus” state as distinguished from the “elective-ideological” state in the U.S. precisely because there is no ringing endorsement of the sovereignty of the Canadian people in the Canadian constitutional tradition.
    While it is heartening to see Professor Ajzenstat make the case against the “Russellians” that Canada was not intrinsically meant to be an updated national version of the Family Compact there is still a problem here. To repeat – nowhere in the Canadian constitutional record can those “holy” words be found which read “We the People of Canada do ordain and establish etc….” Historically speaking, if it be allowed that the Canadian people have been governed more or less in defiance of their actual political and moral sentiments over the last few generations surely the absence of such a phrase must have something to do with it.

    Colin D. Pearce
    University of Guelph-Humber


  4. 5 John von Heyking November 14, 2009 at 3:07 pm

    The short response to Prof. Pearce’s question is that many of the Canadian Founders attributed the cause of the US Civil War to popular sovereignty, which produced too loose an attachment to the forms of the US Constitution, and produced a despotic figure such as Abraham Lincoln who suspended the Constitution. That’s the sense that I get by reading Prof. Ajzenstat et al.’s edition of Canada’s Founding Debates.

    And so, lacking an explicit appeal to the symbols of popular sovereignty, our Founders were careful to locate sovereignty in a blend of institutions of responsible government (which Ajzenstat has explained so well) and the Crown, which the Founders claimed was a better guarantee of liberty than the US Constitution.

    What makes this question so interesting to me is that the Founders seemed to have regarded the question of popular sovereignty versus sovereignty in the Crown a false dilemma. Treating it as a genuine dilemma leads to excessive claims on both sides, witness the difference between David E. Smith and Christopher Moore on parliament (see Moore’s review of Smith’s book in a recent TLC). Smith regards the Crown as sovereign, which makes for a passive electorate, while Moore takes responsible government as a sign of latent republicanism.

    Either Crown or republic? Or both? GG Jean, our sovereign representative, decided to let Stephen Harper keep his job around this time last year, but it seems she did so on the basis that he had just won an election. So much for the need for “explicitness.” Or sovereign is hidden.

  5. 6 John von Heyking November 14, 2009 at 3:19 pm

    Oops, last sentence should read: “Our sovereign is hidden.”

  6. 7 Rainer Knopff November 17, 2009 at 3:48 pm

    Janet: Could I push you to say a bit more about this issue? I think you’re quite right on the popular sovereignty/consent question, but should you not address the evidence Russell directly uses to support his view? This comes in Part 2 of Essential Readings, on “Representative Democracy.” The first reading of Part 2 (reading 11 in the book) is a letter from Cartier, Ross, and Galt to the British Colonial Secretary, in which they include among the ways that the proposed constitution differs from the U.S. model the fact that “it does not profess to be derived from the people but would be the constitution provided by the imperial parliament, thus affording the means of remedying any defect, which is now practically impossible under the American constitution.” The editors’ introduction to this reading refers to this passage as “what Peter Russell, in his book Constitutional Odyssey, describes as ‘perhaps the most haunting lines in Canada’s history’.” Should you not explain why Russell is wrong to put so much weight on these ‘haunting’ lines?

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    • 9 Ray August 15, 2013 at 5:15 pm

      As the founder of UCPAC (United Canada Political Advisory Council) I find this blog very interesting. Rather than focus on opinions of other people I have taken to looking at the facts. R. Rodgers Smith and Walter F. Kuhl have provided some very interesting facts on the constitutional anomalies of Canada. The facts that they present demonstrate that the Canadian people do not have a constitution and that the one being imposed upon the Canadian people was created by and is for the benefit of the Crown.
      A few other factual anomalies regarding Canada and popular sovereignty that I have noticed are that the people of Canada seem to be denied accountability of their representatives, civil servants, military and judiciary. To anyone who has read the constitution of Canada it is absolutely clear that the people did not choose a head of state by casting a vote, which leads me to ask the question, why? Why did we bother casting votes if we are not electing a representative head of state?
      Other anomalies of particular interest to me are the fact that all levels of civil governance, whether it is a member of Parliament, civil servant, police or any other branch of “service” to the people of Canada must swear an oath of allegiance to who? The Canadian constitution? The people of Canada? The Canadian Government? None of these are ever mentioned. All oaths are sworn to the Queen (aka the Queen of Canada) not that people should think this a trivial matter. The oaths act of Canada is quite clear that there are ramifications for violating the oath taken. For parliamentarians they are not even allowed to take their seat if they do not take the oath and at the oath taking ceremony the member has to be invited into parliament, so much for thinking that your vote placed them into office.
      When one considers the gravity of those acts, one has a tendency to be view those acts as treason, at the very least it defrauds the Canadian people of representation. That may come across as a strong statement but if the elected official would have sworn their oath to the people of Canada then there would be an obligation to them but since they swore an oath to a foreign Monarch they now owe fealty and allegiance to that Monarch. Before forming an opinion about this look up the indictment of Louis Riel and see if there is any obligation to the Canadian people or Government that was even mentioned. People should also know that Louis Riel was an elected member of Parliament who did sign in and Swear the oath according to official government websites. This trial took place a full 18 years after the alleged constitution was enacted. I almost forgot a couple of very important trials where judges have made some very telling statements. The Littlechild case where the judge said “I know of no legal duty on an elected representative at any level of government to consult with his constituents or determine their views. While such an obligation may generally be considered desirable, there is no legal requirement. I adopt the quotation from the trial in the Roman Corporation case, where he said:
      “It is of the essence of our parliament system of government that our elected representatives should be able to perform their duties courageously and resolutely in what they consider to be the best interests of Canada, free from any worry of being called to account anywhere except in parliament.”
      Did I mention that judges get their authority from the Queen too?

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