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.

3 Responses to “Peter Russell Wrong on Popular Sovereignty”

  1. 1 Marcos Paulo Reis November 20, 2009 at 4:45 pm

    Hello Projessor Ajzenstat,

    Perter Russel edited a book called Parliamentary Democracy in Crisis, I am assuming you have read it in full or at least some of it. In this book there is an article by Jean Leclair and Jean-François Gaudreault-DesBiens where the authors, quoting Alexis Tocqueville, try to highlight the effects that an “individual rights mentality” have on our parliamentary democracy.

    Although I am incline to agree with you concerning popular sovereignty argument expressed in your two books, I was struck by the authors claim of the “hardening properties” that equality can have on a society.

    Would you have any comments on that subject? Would the claim of the authors, contradict the assumption that when all individuals work for their self-interest, inside the frame work of a constitution, society is better of?

    In my view the most concerning claim made by the authors is the rise of a “non-com possibility” situation where compromise between conflicts of interests would be made impossible.



  2. 2 Colin Pearce November 20, 2009 at 6:46 pm

    Re: Russell or Ajzenstat or…?

    Professor Ajzenstat is sure that her disagreement with Professor Russell is more than “an antiquarian matter, of interest to historians only.” Indeed she says “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.” In the clearest terms – “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.”

    But do these two alternatives – the “Russellian” and the “Ajzentatian” – exhaust all the possibilities? Might we readily hand the olive wreath to Professor Ajzenstat in her “agon” with Professor Russell and nevertheless still come to the conclusion “that Canada got off to a bad start”? Why should it necessarily follow that Professor Ajzenstat’s historiographical victory over the competing “Russellian” account constitutes proof positive that Canada got off to a “good start”? Could one not fully allow all her claims against Professor Russell and yet still conclude that Canada was “Crippled at Birth” to borrow the title of one professor’s book that came out under a less controversial title?

    In evidence of a third possibility here which is neither “Ajzenstatian” nor “Russellian” consider Professor Ajzenstat’s post on the Citizenship Guide entitled “Discover Canada.” Professor Ajzenstat explains that this is a document which depicts a country that “makes demands on its citizens” and which “sets out what Canada expects of them” including “respect for human equality, and obedience to the law…(g)etting a job, taking care of one’s family, working hard in keeping with one’s abilities, volunteering, serving in the armed forces or the police, or local militias.” These are all “important Canadian values” according to the Guide. (“When did they ever cease to be?” we might ask). But then Professor Ajzenstat moves on to a comparison of “Discover Canada” with the guide it replaced issued by the Liberals in 1995 entitled “A Look at Canada.” After confessing to “a little exaggeration” she describes this effort as “a whimpy affair” which, while “(a)pplauding Canada’s role as international peacekeeper,” nevertheless “listed fewer obligations” than does the new guide, while suggesting that “saving the environment …planting trees, tidying up, carrying out the garbage” were the truly Canadian “thing(s) to do.”

    One could of course hasten to say that the previously unsatisfactory situation with respect to the “Citizenship Guide” has been rectified at last and that in any case the “whimpy” version of the Canadian experience has no relation to the Canadian Founding as it is of comparatively recent vintage dating from the 1970’s or 1960’s at the earliest. As such it bears no relation to the “good start” made by the Fathers at Confederation. But then the inevitable question arises: “How could it be that for twelve years between 1995 until Minister Kenney’s reforms the Government of Canada was foisting on the Canadian people an account of their own history that was at best superficial and at worst misleading and ‘Orwellian’ in its intention? How could such a version of the Canadian experience have worked its way into the governmental bloodstream such that it became the ‘official’ account of this experience for no small period of time? Shouldn’t Canada’s ‘good start’ have been a prophylactic against any effort to convince the Canadian people of a history that is not in fact their own and which only reflects the ideological predilections of a certain elements in Canadian politics and nothing more? How did a fraudulent account of their past gain ‘official’ status when the Canadian people would not recognize themselves in this portrait of it?” Surely if their sovereignty was in full extension they would have never allowed this effort (which must have taken no small amount of time to consummate) to distort the meaning of what it means to be Canadian to proceed.

    That this should have been the course of events with respect to an aspect of Canadian civic education certainly raises questions that go beyond “an antiquarian matter” in the direction of the matter of Canada’s “good start.” Whatever else one might say “True Patriot Love” should not induce us to insist on a “good start” if there is a persistent array of constitutional and policy problems, perhaps symbolized by the issue of the “Citizenship Guide,” which might suggest Canada has been “handicapped” in certain key ways right from the very outset of her modern political life.

    But for all that what elements indeed would “a good start” contain if not the ones we had? Here one might think of any number of possibilities allowed by the luxury of 20/20 hindsight. But I’ll try one from Article IV section 2 of the Constitution of the State of South Carolina: “No person shall be eligible to the office of Governor who denies the existence of the Supreme Being.” Now that’s a start!

    Colin D. Pearce
    University of Guelph-Humber

  3. 3 #2 August 4, 2013 at 9:59 pm

    Link exchange is nothing else however it is just placing the other person’s weblog link on your page at appropriate place and other person will also do same in support of you.

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