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’s wrong, as I’ve argued many times. Russell offers in support of his 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. 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 in 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 local 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.

Here’s my best guess. Cartier, Ross, and Galt know well that a provincial political party does not 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 item 11, the letter that interests Russell, they have stepped over the line; they are now putting forward concrete recommendations for a new political constitution. They are describing a division of legislative powers. They were well aware that such unilateral action by the Tory Government of the Province of Canada would offend the Maritimers. They were aware that unilateral party action would violate the principle of popular sovereignty. Constitution-making requires a formal and inclusive process of of drafting and ratification. Hence the insistence on confidentiality. Galt, Cartier, and Ross did not want it known that they had submitted a sketch of the division of powers  ideas about the division before the formal drafting committee had been devised.

At Confederation there were 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.” The soil may be sold, but the soul is free. Does your heart lift 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.

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 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.

2 Responses to “Reprise: Russell and Popular Sovereignty”

  1. 1 Colin Pearce November 23, 2009 at 12:37 pm

    Re: Constitutional Defects

    Professor Ajzenstat suggests that what we need at this point is a new science of “Canada/U.S. Comparative Defectology.” Just quickly let me suggest that if this is the case then all roads lead to John C. Calhoun, the greatest American political theorist after “Publius.” Calhoun’s whole self-professed endeavour was to remedy the defects of the United States Constitution which he thought had manifestly come to sight after several generations of its operation. One scholar has recently weighed in on the thought of Calhoun and in doing so reveals him to have been amazingly influential around the world in recent decades. I wrote a review for “Choice” which seeks to give a brief account of the book’s treatment of Calhoun’s effort to complete and correct the work of Madison and his colleagues.(See below).

    Read, James H. Majority Rule Versus Consensus: The Political Thought of John C. Calhoun. University Press of Kansas 2009. 276p bibl index afp isbn 978070061350, $34.95

    The author of this interesting and important book justifies his attention to John Caldwell Calhoun on the premise that Calhoun’s “consensus model” remains an exceedingly influential “ideal” in contemporary world politics. Read explains this influence via the intervening connection of Arend Lijphart and his idea of “Consociational Democracy” which makes Lijphart “probably closest to Calhoun in theoretical approach” of all contemporary political scientists (p.199). In Read’s presentation Lijphart’s work has been a conduit of Calhoun’s political philosophy to contemporary “founders” in such places as Northern Ireland, Yugoslavia and South Africa. With respect to America itself it is President Clinton’s nominee for Assistant Attorney-General for Civil Rights, Lani Guinier, who emerges as the major contemporary intellectual disciple of Calhoun. Read describes the “clear parallel between Calhoun and Guinier” as rooted in her assumption “that political elites will be more willing and able to bridge racial, social, and political divides than members of the voting population as a whole” (p.223.p.225). While Read is clear that Calhoun’s “broader political theory cannot be reduced simply to a defense of slavery” and that it was intended to be “modern, progressive and fully consistent with current advances in science, economics, and constitutional law” (p.150) he is nevertheless forced to the conclusion that “Calhoun’s remedy…is workable only in ways that are less fair or just than majority rule” (p.236). But at the same time Read is persuaded that Calhoun’s skepticism about “simplistic democratic evangelism” (p.236) remains of great educative value in the current climate of opinion.

    Colin D. Pearce
    University of Guelph-Humber

  2. 2 Colin Pearce November 24, 2009 at 1:50 pm

    Re: Comparative Government

    Just a couple of one-liners from the days when political science and political humour were good friends.

    The North Atlantic Triangle:-

    “Britain had virtue; America had institutions; Canada has neither virtue nor institutions.”

    Two Democracies:-

    “In America the people hate the government. But Canada is different – there the government hates the people.”



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