Archive for the 'Uncategorized' Category



The Once and Future Canadian Democracy

This welcome message came in recently.

I have been reading your 2003 essay “The Once and Future Canadian Democracy”.  It is perhaps the most coherent synthesis of political thought in Canada that I have read to date, and the “liberal”/”romantic” theory fills many of the gaps I had found until now.

Thank you for your work, Professor.

See Janet Ajzenstat, The Once and Future Canadian Democracy (McGill-Queen’s University Press, 2003).

Going for a song on Amazon.

Parliamentum

James Bowden’s site, Parliamentum is a splendid site. A very welcome addition to Canadian thinking on legal and constitutional matters. I am enjoying the current discussion on Canadian independence.

What They Said About Responsible Government at Confederation

Let’s get back to questions of responsible government. Did the 1848 grant of responsible government to the British North American colonies sever the colonies’ formal connection with the mother country?

I say yes. After 1848 the colonists continued to regard themselves as part of the Empire and looked on the mother country affection, but conducted their local affairs as if they were free and independent polities able to legislate on any and all matters.

Most historians disagree. (Some readers on this blog disagree.) What is usually said is that in 1848 the united Province of Canada and the colonies in the Maritimes got a truncated form of responsible government; important powers were reserved for the British Parliament. Gerald Craig, editor of the Carleton Library edition of Lord Durham’s Report says in his introduction: “The grant of colonial self-government that Lord Durham was prepared to make in 1839 was wholly genuine, but it was also extremely limited in scope.” The mind stutters; imagine a form of self-government – self-government! – both “wholly genuine” and “extremely limited.”

The issue was discussed at Confederation and I can tell you at once that without exception participants in the ratifying debates in the provincial legislatures agreed that provinces adopting responsible government remained proud of their association with the mother country, but regarded themselves as free in the way that independent countries are free.

Nova Scotia’s William Lawrence boasted: “We are a free people, prosperous beyond doubt, advancing cautiously in wealth … Under the British Constitution we have far more freedom than any other people on the face of the earth.” By “British Constitution” Lawrence meant the colonial legislature. In Newfoundland, George Hogsett said: “We have here a constitution for which the people nobly fought, and which was reluctantly wrung from the British government. We had the right of taxing ourselves, or legislating for ourselves. Newfoundland’s Ambrose Shea argued that responsible government had brought “virtual independence.” He claimed moreover, that the colony had legislated tariffs hostile to the commercial interests of England. In New Brunswick, John Mercer Johnson said: “We want nothing better than British institutions, for under them we have as much liberty, and a little more, than they have in the United States.

In statements like these you hear the sentiments of the anti-Confederates. In the Atlantic Provinces especially, the chief objection to Confederation was fear that union with the Canadian provinces would impair liberties enjoyed from 1848.

But similar arguments can be found among the legislators committed to federal union. In the Canadian Legislative Assembly Thomas D’Arcy McGee said: “The two great things that all men aim at in any free government are liberty and permanency. We have had liberty enough – too much perhaps in some respects  – but at all events, liberty to our heart’s content. There is not on the face of the earth a freer people than the inhabitants of these colonies.”

From the Law School’s Front Lines

A former student of mine who is now attending a prestigious law school, writes:

I am coming to the end of my first semester. I’ll say this, it’s a lot harder than any other school I’ve done. I think they’re trying to weed us out by running us into the ground.

I’m at a nice school, but it has that same problem all super left schools have (and I say this as someone who identifies as a radical moderate). You know the answer to the question before the prof is finished asking it. Or at least you know what is the socially accepted answer.

I’d honestly rather be intellectually challenged than just get patted on the head for pointing out the fact the world is unfair to women, minorities and aboriginals. Tell me something I don’t know, that’s how I’ll learn). But, if that’s your only complaint about your faculty-that sometimes they’re embarrassingly socially minded-it’s not that bad at all.

Property law and Public law are my favourite classes so far-not surprising, I guess. We got a little bit of Locke in the former and the latter is just Poli Sci with case law so it’s right up my alley. Taking public law has taught me a lot about the nuts and bolts of the Canadian federation that I previously only understood in theory. But, it amazes me how many of my fellow classmates don’t know anything about the Canadian political system! I’m tutoring people after class on the separation of powers, judicial independence, the debate on judicial activism vs the supremacy of Parliament and statute interpretation. There are literally people in law school who don’t know what the left and right in politics are! I’m a little concerned about letting computer science majors be lawyers if they haven’t bothered to figure out how the legislature that creates the law they’ll be administering works, but that’s life I guess.

Of course I get a lot of flack for favouring Parliament as the place law should be made on controversial issues as opposed to activist judges … that doesn’t go over well in a heavily left class. And usually it goes down like a lead balloon with the kids who don’t actually know much about politics or political theory. I guess my feeling is that being wary of judicial activism is not a left vs right thing … it’s an are-you-worried-about-the-fundamentals-of-our-democracy issue. I get there’ll be times when the judges have to pull us forward, but well, I think that’s a symptom of an apathetic society that is taking the use of Parliament for granted. People fought so hard for our right to be represented way back in the day as opposed to lorded over by a monarch appointed by God and it’s like no one cares about that anymore. Nor do they seem to care that it’s technically our responsibility as the people to force Parliament to deal with the difficult issues via the ballot box rather than continuing to elect wimps who won’t touch the sticky wickets that need legislating while leaving it to the judges.

Parliamentry Developments in the News

  • Ian Brodie sends notes from a recent conference at which participants concluded that parliamentary democracies have made the transition to democracy in Eastern and Central Europe better than the presidential systems because they make room for opposition.
  • And I hope readers noted Chris Moore’s comments on recent events in Italy. Moore’s always good on parliamentary developments. I’m now citing Chris Moore’s Canadian History Blog:  “Italy’s new prime minister (and finance minister) Mario Monti, who does not hold a seat in the Italian parliament, has appointed a new cabinet, and none of its members hold a seat in parliament either.  It’s impressive how little concern anyone seems to express over this. They are technocrats, see, they have a job to do.  Democratic responsibility?  Meh. Now, in principle, anyone who holds the confidence of the legislative majority can serve in government in a parliamentary democracy.  Canada has had cabinet ministers and sometimes even prime ministers without Commons seats.  But the whole government?  And for years to come? What is the mechanism for accountability to the legislature, to the people’s elected representatives? It’s striking how little anyone seems to care.”

In Praise of Political Institutions

 

Pauline Beange, Political Science, University of Toronto, sends this quotation because she knows I will enjoy it (and I do!), and to celebrate the successful defense of her Ph.D. thesis.

“I hope ever to be found on the side of the people and of the Institutions of England. It is our Institutions that have made us free, and can alone keep us so; by the bulwark which they offer to the insidious encroachments of a convenient, yet enervating system of centralization which if left unchecked will prove fatal to the national character.” (Blake, Robert. 1967. Disraeli. New York: St. Martin’s Press.

Thanks Pauline, and Congratulations.

Laurier and Papineau

I’m enjoying André Pratte’s new biography of Wilfrid Laurier for the Penguin Group series, Extraordinary Canadians. Here’s a provocative passage:

“ … many members of the French-speaking elite of the nineteenth century, including ardent nationalists such as Louis-Joseph Papineau, felt great admiration for the British and the parliamentary democracy and economic prosperity they had brought to the province of Quebec. They found this system far preferable to the atheistic and unstable republican system chosen by France–which, they remembered with bitterness, had ‘abandoned’ their ancestors.”

He’s right about Papineau! In July 1830, Papineau said in the provincial assembly:

[Britain’s] “best laws have become ours, while our faith, our property, and the laws by which they were governed have been conserved; soon afterwards the privileges of her free constitution were granted us, infallible guarantees of our domestic prosperity, if it is observed. Now religious tolerance, trial by jury, the wisest guarantee which has ever been established for the protection of innocence; security against arbitrary imprisonment, thanks to the privilege of the habeas corpus, equal protection guaranteed by law to the person, honour, and property of citizens; the right to obey only laws made by us and adopted by our representatives – all these advantages have become our birthright, and will be, I hope, the lasting heritage of our posterity. In order to conserve them, we should act like British subjects and free men.”

The passage is cited in Michel Brunet, “The British Conquest and the Canadiens,” Canadian Historical Review, XL (2) June, 1959.

It’s true that when the guns and swords came out in 1837-38, Papineau flirted with ideas of populist democracy as described by Jeremy Bentham and the British Philosophical Radicals. He was always a “divided soul.”

I recommend Pratte’s biography but regard as the one essential commentary on Laurier, Rainer Knopff’’s “The Triumph of Liberalism in Canada: Laurier on Representation and Party Government.” It appeared originally in the Canadian Journal of Political Science and has been reprinted several times. Canada’s Origins, Liberal, Tory or Republican? Janet Ajzenstat and Peter J. Smith, eds. (Ottawa: Carleton University Press, 1995).

Historica-Dominion Institute on the Canadian Senate

The Historica-Dominion Institute publishes a daily note about what happened in Canadian history “on this day.” In the National Post, you’ll find it on the diversions page with the crosswords.

Until recently On This Day has been a pretty sober affair. But someone’s having fun with it now. Here’s how it read on September 27, 2011:

“Sept 27, 1990. Prime Minister Brian Mulroney invoked a never-before-used-section of the Constitution to appoint eight extra senators, so that the Liberal majority in the Senate could no longer block passage of the Goods and Services Tax (GST) legislation. It’s the old saying, “if you can’t beat them, join them. And if you can’t join them, evoke constitutional clauses to fundamentally change their makeup and get your way. You know, that old chestnut.”

Self-serving politicians. “That old chestnut.” Always good for a laugh. But, I have to admit that Mulroney’s action looks shoddy.

John A. Macdonald would have thought so.

The Quebec Resolutions of 1774 had no provision allowing appointment of extra senators. The omission was deliberate. In the debates on the Quebec Resolutions in the Legislative Assembly of the Province of Canada, Macdonald argued that the Quebec Resolutions would prevent ministries from attempting to overrule the independent opinion of the upper house by filling it with a number of its partisans.

“No ministry in Canada in future can do what they have done in Canada before – they cannot, with a view of carrying any measure or of strengthening the party, attempt to overrule the independent opinion of the upper house by filling it with a number of its partisans and political supporters. The provision in the constitution, that the Legislative Council shall consist of a limited number of members – that each of the great sections [of the federation] shall appoint twenty-four members and no more – will prevent the upper house from being swamped from time to time by the ministry of the day, for purpose of carrying purpose of carrying out their own scheme or pleasing their partisans. The fact of the government being prevented from exceeding a limited number will preserve the independence of the upper house and make it, in reality, a separate and distinct chamber, having a legitimate and controlling influence in the legislation of the country.” (John A. Macdonald, Canadian Legislative Assembly, February 6m 1865.)

At the London Conference 1866, before the Canada bill was presented to the British Parliament, the British government argued that appointment of extra senators was needed to prevent deadlock between the House of Commons and the Senate, and was not out of keeping with British parliamentary traditions. A defeat for Macdonald!

Birth of a Country

Last night on the CBC Indian Grove Productions aired its drama, John A.: Birth of a Country, based on the first volume of Richard Gwyn’s  biography of John A. Macdonald. I  loved it.

More, more. Please. The second volume of  the  biography is out and I hope Indian Grove has already started work.

The voices, the Scottish-Canadian accents.  The portrait of George Brown! (This especially.) The role of women: very welcome. The parliamentary scenes! The sheer huge drama of the story.

Ours is a big story. And here at last is a company that can tell it.

Brian Crowley: Is he selling Canada out?

Dear Brian:

I am resigning from the research board of the Macdonald-Laurier Institute. I cannot have my name associated with an organization that recommends establishment of a joint legislative committee of the American Congress and the Canadian Parliament.

Canada is a sovereign country. We cannot have sitting members of the American Congress and the American Senate participating in the formal determination of Canadian law.

There could be no objection to an extra-legislative committee  to inform persons from the two countries about common interests. And such a committee might include legislators from Canada and the U.S. But they would not be sitting as legislators. They would not the sitting as law-makers.

Here’s how you put your proposal in the current Macdonald-Laurier Institute Newsletter:  “the time has come to create a joint committee of Congress and Parliament charged with oversight of the Canada-U.S. relationship, holding hearings, issuing reports, and taking their newly acquired knowledge and relationships back to their respective bodies. Give a human face to their relationship with Canada, and a context in which they actually are constrained to learn about it, and they will help to batter down the resistance of the backward-looking generals at the gate.”

The statement is extremely damaging. It will be seen by many Canadians as proof that the Macdonald-Laurier Institute wishes to see Canada incorporated into the United States.