Constitutional Reform: Let’s Not Go There

In the National Post (January 21, 2011), Michael Bliss and John Fraser argued that it is time to cast off Canada’s connection with the British monarchy.

John Von Heyking wrote in reply: “Removing the monarchy would involve whole-scale constitutional transformation or even a revolution. Such a process would make the struggles over Meech Lake and the Charlottetown Accords look like an afternoon tea. As with those struggles, removal of the Crown would invite every sector in society to create its replacement (e.g., a president) in its own image” (Letter to the Editor, Post Jan 22).

Von Heyking’s right.

You would think Canadians had learned something from the three decades of our “constitutional odyssey.”  Quarrels about constitutional reform can be bitter, bitter.

A loss in the parliamentary arena is tolerable because the Westminster parliament is dedicated to the idea that the views of the political opposition must be honoured, recorded, and published. Citizens are required to obey laws passed by the legislative majority, but are not obliged to like them and are not obliged to keep quiet about their dislike. Moreover, dissent on a point of statutory law is not merely tolerable; it is something to be encouraged. Free and open debate about statutory law is the defining characteristic of a free country.

Parliament’s laws can be amended or repealed by a subsequent parliamentary vote.  If repealed they can nevertheless be restored in whole or part. The constitutional principle guaranteeing this absolute right to dissent has a curious name: It is called “parliamentary sovereignty.” In Dicey’s words: one parliament cannot bind another.

A loss in the arena of constitutional law may be permanent; reform of constitutional law is difficult, requiring special rules and special majorities. Hence the acrimony of debates on constitutional reform; hence the bitterness. And because constitutional law is supposed to express our common views, the laws and standards about which all Canadians agree, dissent can look like sedition.

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Hugh Segal’s Canada-U.S. Union

Senator Hugh Segal is proposing to fold Canada into the United States. He’d include Mexico too. (Very generous!)

We should create a common “assembly,” he says – a legislature – in which elected representatives of the three “nations” do – um – whatever it is representatives do.

“Sovereignty is a vital national instrument. It is not a goal.” Sovereignty is not a goal. That’s Segal speaking. We can use our sovereighty for this or that purpose.

We could,  for example, give up a bit. We could give up Canada.

The proposal is contained in Segal’s new book, The Right Balance, Canada’s Conservative Tradition, just out from Douglas and McIntyre.

One of us is losing her mind. Or his mind. It might be me. Segal regards his vision as “conservative.” I always thought conservatives were a bit slow off the mark. Reluctant to entertain wild innovative visions. I thought Canadian conservatives had a certain fondness for Canada.

Canada’s Revolution

Prompted by the riveting scenes from Cairo, journalists and bloggers are revisiting the great modern revolutions: the French, the American and the Russian. Even the Glorious Revolution (1688) gets the occasional mention.

Of the Canadian Revolution, we hear nothing.

Perhaps you are of the opinion that Canada did not have a revolution. If that’s your view you are wrong but you’re in good company. Donald Smiley, usually so astute, says: “Unlike Americans in the eighteenth century … Canadians never experienced the kind of decisive break with their political past which would have impelled them to debate and resolve fundamental political questions” (Canada in Question, 1980). Philip Resnick agrees: “It is a well-known feature of Canadian history that this country, unlike the United States, was not born of revolution” (The European Roots of Canadian Identity, 2005). Resnick appears to suggest that if we had fought our way out of Britain’s clutches – shed a little more blood – Canadians today would enjoy a more robust sense of national identity.

He’s wrong. Smiley’s wrong. Canada had a revolution, an excellent and successful one. It unfolded in three stages.

Count the Rebellions of 1837 and 1838 in Lower and Upper Canada as the first stage. The rebels failed to overturn the colonial oligarchies, it is true, but no episode in which numbers of citizens or subjects carry arms against constitutionally recognized authorities is without consequences.

The oligarchies fell ten years later with the introduction of the parliamentary principle known as “responsible government.” As each colony adopted the practice it became in effect an independent, self-governing state. Voilà: the revolution’s second stage.

And then, in 1867, came the third.

At the Quebec Conference of 1864 the Fathers of Confederation drafted a constitution providing for a federal union of the British North American colonies under a “general government,” complete with taxing and spending powers; they created the body that is now called the Parliament of Canada. And first one and then others of the British North American colonies ratified the proposal.

Think in Lockean terms. In the Second Treatise of Government (paragraph 94), Locke argues that the people “could never be safe nor at rest nor think themselves in Civil Society, till the Legislature was placed in collective Bodies of Men, call them Senate, Parliament, or what you please. By which means every single person became subject equally with other the meanest Men, to those Laws, which he himself, as part of the Legislative had established.”

The British North America Act (1867) – now called the Constitution Act (1867) – was made in British North America for British North Americans by British North Americans. The British Government was  looking over the colonists’ shoulders and gave the Act the final touch of legitimacy, putting it through the British Parliament. But from first to last it was a colonial creation, willed and drafted by the Fathers at Quebec and – most important – of ultimate importance – ratified by the people of each province as represented in their provincial legislatures.

A new country, a new state, had emerged. It had certain international obligations. But not noticeably more than the Canadian state has today. It had prudential and sentimental reasons for maintaining good relations with Britain. It was nevertheless new; it was an independent regime.

A successful revolution, I would say! It has endured.

Why Don’t Canadians Go In For Assassination?

“America: the land where any kid can grow up to kill a President.” The local play-goers have gone to see Stephen Sondheim’s musical Assassins at Toronto’s Birdland Theatre. They saw the same musical in the same  production last year. And if it’s on again next year they will probably go again.

But they have a question.

Why don’t Canadians go in for assassination? In a little more than a hundred years America has assassinated four Presidents and made attempts on five others. What’s the Canadian record? There was Thomas D’Arcy McGee, according to Google the only Canadian federal politician to be assassinated. (McGee’s story could be made into a dark Sondheim-type musical.) But however you add things up it’s evident that the U.S. has proportionately more assassinations and attempted assassinations.

Are Canadians naturally more pacific, more kindly? Are we more timid?

George Breckenridge (ardent play-goer) blames the American Constitution for the U.S. propensity to kill Presidents. The American Constitution entitles every citizen to the pursuit of happiness. Understandably, George suggests, some suppose that  they are entitled not only to the pursuit of happiness but the thing itself: happiness. Americans are constitutionally entitled to happiness! And when they are miserable they want redress.

They attack Presidents – I’m kicking in here in support of George’s argument – because as Head of State the American President represents the Constitution, the entire citizenry of the United States, and the historical idea of constitutionalism.

It is true that the American President is also Head of Government, the country’s chief politician, but as a target for assassination, I suggest, he is supremely the Head of State, the representative of the “system.”

George has a good argument. And it explains why we have fewer assassinations in Canada.

Killing a politician, even a prominent one like a Prime Minister, can’t compare with killing a Head of State; it’s a smaller act; it lacks grandeur; it suggests that the killer had merely a particular, ideological, or personal, agenda.

Canada has a Head of State. An aggrieved Canadian might attempt to kill him or her. But it is all very confusing. We have two; one who resides much of the time in England, and another who lives here. Most Canadians can’t put a name to the one living here. Who is the current one? (Madame Jean was the exception; quite a few Canadians got to know her and her name.) Most Canadians have only a vague idea of the Governor General’s historical and constitutional role. Probably a good thing, eh?