Archive for June, 2011

John A. Macdonald on Senate Elections

John A. Macdonald feared democracy. That’s Neal Reynolds’ contention, as I said yesterday. He’s wrong. Macdonald prescribed liberal democracy. That’s not Reynold’s only mistake.

Oh. The inventiveness of people who make up Canadian history!

Reynolds assumes that Macdonald supported an appointed Senate: “As for our Senate (from the Latin senex – “old man”), Macdonald’s model empowered the Crown to maintain an upper house of privileged men of property for life.”

Well, it’s easy to make such a mistake. There’s Macdonald, back in the past, in the 1860s; he must have had old-fashioned ideas, wouldn’t you think? In fact, Macdonald argued strenuously for an elective Senate. By the time the debates on Confederation are held in the Legislative Assembly of the Province of Canada early in 1865, he has been outvoted. At the Quebec Conference the previous fall the Fathers of Confederation had decided that the general government of the federation would have an appointed upper house. As a supporter of the Quebec Resolutions Macdonald was then required to endorse appointment. In the Assembly debates he alludes to his former preference for election. He could hardly have avoided the topic. Everyone present would have known his true views.

There’s another matter. At the time of the debates on Confederation, the Province of Canada was in the process of abandoning the process of appointment to the provincial Legislative Council. Appointed members continued to sit; as seats became vacant, new members were elected. And then – surprise, Upper Canada (Ontario) came into Confederation without an upper chamber.

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John A. Macdonald Was Afraid of Democracy?

Who says? In yesterday’s Globe and Mail (June 27), Neil Reynolds argues that “thanks to John A. Macdonald’s “fear of democracy, Canada would never experience multiple centres of political power now celebrated as checks and balances.”

It’s a familiar idea; it’s been taught in departments of history and political science for decades. The Fathers of Confederation did not want democracy. We did not get it in 1867 and Canada today is still not democratic.

But dear friends, familiar as it is, it’s not true. The Fathers, including Macdonald, prescribed liberal democracy. Ours is one of the world’s oldest liberal democracies. We have an exemplary history of democratic government.

According to Reynolds, “Macdonald regarded the rough-hewn American experiment in democracy as an irrefutable argument for [introducing in Canada] highly centralized government. In his model of parliamentary government, political power would reside symbolically in the Crown, effectively in the prime minister.”

The statement is right this far: in the Constitution Act, 1867, power indeed resides symbolically in the Crown, and effectively in the prime minister. But it is wrong to suggest that the arrangement is anti-democratic. It is rather, the feature of our constitution enabling democracy. It enables parliamentary liberal democracy.

Here’s John A. on the parliamentary system. He is speaking in the Legislative Assembly of the Province of Canada in the Confederation debates of 1865, describing the form of government that is to obtain at the federation’s national level. “We will enjoy here that which is the great test of constitutional freedom – we will have the rights of the minority respected. In all countries the rights of the majority take care of themselves, but it is only in countries like England enjoying constitutional liberty, and safe from the tyranny of a single despot or of an unbridled democracy, that the rights of minorities are regarded.” By “the minority,” Macdonald means the political minority, the opposition in the legislature and dissent in the electorate and public at large. The singular advantage of parliamentary government is that the majority cannot claim to be the nation in toto, speaking for all.

The British North Americans who drafted the Canadian Constitution took a good hard look at the American system and most of them held it in high regard. The one aspect about which they had doubts is that the American President wears two hats. He is both head of state, like the Canadian Governor General, and head of government, like our prime minister. The fear was that an American president might use his electoral popularity and his constitutional role as head of state to introduce what Macdonald calls “unbridled democracy, a sort of “people’s republic,” as we might say today, riding roughshod over political dissent. Most liberal democracies today do make a distinction between head of state and head of govern, imitating the British and Canadian model. The United States is the exception.

My thanks to Mark Harding for the reference to the Reynolds article.

Liberal Party Proposal to Cripple Democrcy

The President of Canada’s Liberal Party, Alfred Apps, hopes to resurrect and expand the Social Charter Canadians voted down in the national referendum of 1992 on the Charlottetown Accord.

The “Canadian Charter of Rights and Freedoms should be amended to include positive rights for economic, cultural and social freedom,” he says. (See the National Post, June 14, which reproduces Mr. Apps’ speech of June 9th to the Empire Club of Canada.)

Exactly what “rights” does Apps have in mind? He has quite a list! “Guaranteed health care,” “education,” “retirement security,” the “right to child care,” “environmental security,” and “social freedom.” (I do not know what Apps means by “social freedom.”)

He describes his proposal as means to enhance Canadian democracy. “The inexorable progress of mankind demands the ever more democratic disbursal of power.” (I’m tempted to point out that if mankind’s progress is inevitable, we might just sit back and enjoy the ride. But I don’t want to be petty.)

Entrenching substantive political policies in the manner Apps proposes would not enhance but cripple Canadian democracy. It would limit executive powers to determine a coherent social and economic program. It would circumscribe debate in Parliament and the Provincial Legislatures. It would hamper debate and deliberation in the population at large. National and provincial policy on education, the environment, childcare, pensions, etc., would become  matters of mere administration, to be overseen by the courts.

In the most extraordinary statement of his address, Mr. Apps proposed not only that Canadians turn over to the courts the definition of social, economic and cultural priorities, but that we yield power to determine spending! The text of the speech reads: “In entrenching basic economic, social and cultural rights in Canada, their interpretation by the courts should be ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified by fiscal prudence within a mixed market economy in a global marketplace.’” A bizarre picture emerges. The courts will tell the legislatures what Canadians have to do to fulfill the constitutional obligation to protect the environment, educate our children, and so on, while our governments and our elected representatives scramble to find the money to pay for it all.

Separation of Powers and Responsible Government

 

Political scientists who teach incoming students, the ones who write introductory texts, don’t read our documentary history. They don’t read the Canadian Constitution.

As I argued in yesterday’s blog, it’s commonly said that there’s no “separation of political powers” in the Canadian Constitution. Wrong! Americans enjoy one version of the seventeenth-century British prescription for the separation of legislative and executive responsibilities. Canadians enjoy another and ours is as effective as theirs in securing us from authoritarian government.

Here’s a great bloomer of a mistake on the separation of powers from Peter Russell, author of the influential Constitutional Odyssey, Can Canadians Be a Sovereign People? The Fathers of Confederation, says Russell, “saw no need to spell out the vital democratic principle that government be directed by ministers who have the confidence of the elected branch of the legislature … [After 1867], the principle of responsible government would continue to depend on unwritten constitutional convention. The only hint of responsible government in the final constitutional text is the reference in the preamble to the BNA Act to a “Constitution similar in Principle to that of the United Kingdom.”

Russell’s wrong. He’s just wrong.

Read the parts of the Constitution Act, 1867 describing the Executive Power and Legislative Power. Concentrate on the sections describing taxing and spending bills, that is, sections 53 and 54.

The effect of sections 53 and 54 is that neither the cabinet (the executive) nor the House of Commons (the legislative power) can tax and spend independently. The Cabinet governs, relying on section 54, but it cannot act without the people’s approval through their elected representatives. The Commons, relying on section 53, scrutinizes bills; it may reject cabinet’s proposals, but it cannot take the initiative. Voilà. Responsible government! The “separation of powers” and responsible government!