In addressing the persistence of “civil religion” in Canada, I am addressing the perennial attempts by Canadians, especially since the inception of the Charter of Rights and Freedoms, to legitimate their regime in ultimate principles that their adherents see as sacred and incontestable. Canadians are involved in the perennial human task of creating for themselves a little world of order, a cosmion, amidst their understanding of cosmological and anthropological truth. My talk is not about dead chickens and auguries, but about the implicit faith that our political activities illuminate but never exhaust. After sketching the “closed” secularist civil religion that has predominated during our post-Charter era, I shall sketch a more “open” society that forms part of our tradition of constitutionalism but needs a little encouragement to be brought out further.
Douglas Bland’s recent novel, Uprising, which provides a fictional account of a First Nations insurgency against the Canadian government, shows the problem of civil religion and the legitimacy of our constitutional order. By adopting techniques used by insurgents like the Viet Cong and al-Qaeda, the insurgents hit Canada’s vulnerable energy infrastructure and under-funded military, which leads to the dissolution of the regime. With most of the Prairies on fire and under insurgent control, and with the federal government on its knees, Cabinet members begin asserting the interests of their own regions over those of the federation. Judy Cross, a Cabinet minister from Toronto, wants the federal government to negotiate with the insurgents because, she says, “I can’t be a party to decisions that let Toronto go down the tubes to save a bunch of sod-busters in Saskatchewan. Better buy out the Indians than to kill Canada’s golden goose.”1
The point of bringing up Bland’s thought experiment is not to be alarmist, nor to rehearse well-known stereotypes of the regions. Rather, in seeing how our regime might dissolve, his novel also reminds us of efforts to keep it together and the problematic nature of their legitimacy.
In Uprising, we see the two of three areas of the Canadian polity where the legitimacy of our current way of doing things, our regime, is contested. The legitimacy of our regime is contested insofar as our constitutional order is (1) neither fully pan-Canadian nor utterly fragmented into provinces and regions; (2) neither fully secularized as the Enlightenment would have it, nor fully sacralized; and (3) neither a constitutional monarchy, as text of our constitutional documents have it, nor a republic where the people are sovereign, which is a belief implicit in much public discussion over the past generation. Though each of these is related, my address tonight will focus on the second of these three areas, the question of the secular or religious basis of the Canadian regime, or civil religion.2
While I shall speak of a “secular civil religion,” there is nothing “secular” about it because, as Iain Benson has demonstrated, the dichotomy between “secular” and “sacred” is false.3 Instead, our post-Charter civil religion is intramundane, in the sense that the symbols it generates assume that human flourishing can be complete within the parameters of our democratic state and society. This civil religion is totalistic or “closed,” in the sense that it assumes that liberal democracy can exhaust the meaning of what it means to be human. At the final part of my talk, I will sketch what I regard to be an “open” civil religion whose vision of politics is not so totalistic, and which takes human personhood as having a greater depth and meaning than the intramundane one that has developed since the adoption of the Charter.4 At the core of my argument is the view that politics is also a religious activity, insofar as it engages our personalities so that legal or profane categories simply cannot fully capture its inner substance. In the words of philosopher Eric Voegelin, “The political community is always integrated in the overall context of human experience of world and God.”5
THE POST-CHARTER EVOCATION OF A SECULARIST CIVIL RELIGION
Attempts by Canadians not only to define themselves and determine the legitimacy of their regime have always been problematic, especially since the 1960s. In the nineteenth century and first part of the twentieth century, the legitimacy of Canada’s laws were guaranteed by their roots in the British constitutional tradition, which led many like Bishop Strachan, the great Tory of the nineteenth-century, to regard Canada (then British North America) as part of the civilizing and divine mission of the British empire to bring Christianity, and therefore liberty, to the world. The Social Gospel movement (e.g., “New Jerusalem” and the CCF) and Prime Minister Mackenzie King’s attempt to wed Christian theology with political economy were early twentieth-century evocations of civil religion of Canada.6
The Charter of Rights and Freedoms has been accompanied by a mythology or civil religion that views Canada as the site of the progressive unfolding of human potentiality, freedom, and equality. Instead of viewing Canadian democracy in limited Lockean terms of responsible government, and instead of drawing its sacred symbols from historical Christianity, it draws its symbols from the “democratic faith” of pluralism, tolerance, cosmopolitanism, autonomy, and equality. The 1867 Constitution is seen to have been drafted by bigots and racists, and a second founding (in 1982) is required to correct the earlier botched job.7 Most of the time, its adherents refer to this civil religion in terms of historical “progress” but sometimes they are more explicit about its religiosity, as when former Justice Minister Irwin Cotler frequently proclaimed that “human rights has emerged as the new secular religion of our time.”8
At the core of this civil religion is the creation of the radically autonomous individual. Former Justice Wilson stated in R. v. Jones (1986) that “the freedom of the individual to develop and realize his potential to the full, to plan his own life to suit his own character, to make his own choices for good or ill, to be non-conformist, idiosyncratic and even eccentric—to be, in today’s parlance, ‘his own person’ and accountable as such.” Creating such individuals is an ideological project that cuts individuals from particular attachments like family, ethnicity, region, and religion.9 But instead of creating her own identity, it is the role of the state to create that identity. As Alexis de Tocqueville noticed in the 1830s, citizens of liberal democracies accept the general notion that the government ought not intervene in private matters, but “each of them desires that it aid him as an exception in the special affair that preoccupies him.”10 The irony of this romantic vision of the divinized self is that it requires a divinized state to create it. This also means intermediate institutions in civil society are suspect. “Reason over passion,” Pierre Trudeau’s motto, means the state is rational, and all particular attachments are irrational and therefore in need of administrative control.
As presently constituted, human beings fail to live up to these democratic ideals. Thus, Canada is insufficiently pluralistic, tolerant, cosmopolitan, autonomous, and equal. The ideals of this faith are always to be fulfilled in the future by the enlightened who are better equipped to institute them.
While most of these ideals are inspired by the tradition of liberal democratic government, the direction progressivists take betrays the commitment to individual freedom and dignity in that tradition. For example, tolerance is good, but even the most tolerant will not tolerate the intolerant. Thus, defining what counts as intolerant becomes paramount and can itself bring out a lot of intolerant viewpoints. Defining who is autonomous or respectful of equality runs into similar problems. Typically, religious groups draw fire from progressives for being too intolerant and inegalitarian. Consider the plight of Christian Horizons, which recently appealed an Ontario Human Rights Tribunal decision forbidding it from hiring practicing homosexuals. I shall say more about this case and its implications later.
Progressivists, or secularists, view human history in Hegelian terms of the progressive unfolding of human potentiality whereby humanity moves through various stages (usually three) from, say, the superstitious, to the metaphysical, and now to the scientific where only true freedom and equality can come forth. Necessary to this viewpoint is the belief that religion gets outdated as we move toward the end of history. Progressives see themselves opposed to the views of those still “stuck” in previous stages of history, as indicated by the fictional Toronto MP from Uprising referring to people from Saskatchewan as “sod-busters.”
The urbane progressivist’s disdain towards the religious “sod-buster” translates into a tendency to view politics in abstract terms, as befitting her idealism, and in terms of control—namely, control by progressivists. Trudeau’s motto of “reason before passion” crystallizes this impetus toward abstractions. This sort of abstract intellectualism tends to get clustered around the Supreme Court and around bureaucracy because both are seen to facilitate the rational control of politics.
THE "LEGAL CARDINALS"
Globe and Mail editorialist Jeffrey Simpson once stated with some irony that the justices of the Supreme Court have become our “legal cardinals,” insofar as they have replaced the church as the conscience of the nation.11 In the Supreme Court, the “living tree” view of legal interpretation, by which cases are interpreted in light of society’s progressively evolving values, is the locus of this mythology. Society might change or evolve, but the key here is that the jurist interprets the Zeitgeist. In this light, recall a claim Justice Beverley McLachlin made in her Lord Cooke Lecture: the depository of the constitution’s unwritten principles is in the minds of jurists who know not only the natural law, but the “nature of law,” which is a more ambitious claim. Claiming to know the contents of the natural law (such as “don’t murder”) is one thing, but claiming to know the “nature of law” puts one in the place of nature’s lawgiver. Consider too McLachlin’s argument, made in her 2002 McGill lecture, that “the rule of law,” as interpreted by judges, “makes a total claim upon the self.”12
Even so, if we regard cases involving the freedom of religious associations—especially for the “sod-buster” variety of associations—as a barometer for the aggressiveness of secularist civil religion, the Court in recent years has actually performed somewhat honorably in affirming the pluralistic—or “open”—character of the Canadian regime. Despite these comments by the Chief Justice, the actual conduct of the Court in recent years, especially in its treatment of the freedom of religious organizations, has been marked by a greater prudence and respect for self-government than what is implied by the belief that the Court is the depository of secularist “unwritten principles.”
The Court has acted honorably because of instruction on the nature of the “secular” by Iain Benson and because of its members’ instinctive understanding of self-government, and not on account of any clear understanding of the good that religious pluralism in civil society achieves.13 Indeed, the Court has avoided any meaningful consideration of the meaning of concepts, including the meaning of “tolerance” in the Trinity Western case, in which the Court stated it had not found any instances of intolerant behavior among TWU grads toward homosexual public school students.
A similar example of side-stepping was in the Chamberlain decision, in which the Court claimed that exposing kindergarten kids to books about same-sex couples must be permitted because of the edifying “cognitive dissonance” instilled in kids by seeing diverse lifestyles. It then compared such exposure to seeing other kids with different diets and clothing and brand labels, which hardly seems cognitively dissonant. The Court implied equivalency of homo- and heterosexuality, to the dismay of the religious groups involved in the case, but also implied equivalency of homosexuality with one’s choice of brand labels, thus undercutting any claim of being seriousness about pluralism.14 When everyone is equivalent in this shallow sense, there is no pluralism. It is another example of the secularist civil religion stripping individuals of their particularities, which is supposed to protect their autonomy, but only deepens their dependence on the state. Justice Wilson’s autonomous individual slouches in ankle-deep water.
In dealing with religious freedoms, the Court has made it a practice of raising the importance of promoting individual autonomy, but only to trivialize it. Countering this practice by explaining the good of pluralism is the next step, and my effort down below to outline an “open” civil religion is meant to contribute to that effort.
CIVIL RELIGION AND THE REGULATORY STATE
The bureaucracy is about regulation and the idea that people are better governed by bureaucrats rendering “services” than governed by themselves. In Canada, we have gotten used to the idea of the “embedded state” whereby civil society groups are funded, recognized, and even created as clients of the administrative state, which creates a self-legitimating feedback loop between the state and civil society. Adscam is perhaps the purest expression of this process.15
Over-regulation, whether in the form of human rights commissions or in the name of public safety, is a bête-noire of both left and right. The rush to ensure “public safety” has as its civil religion the notion that regulation is the best way to cope with the unpredictable and often cruel cosmos under which our precarious lives hang. English sociologist Frank Furedi has well summarized what might be termed the civil religion of the regulatory state: “Every time a child dies, somebody will say—either the police or the coroner or a lawyer—that the lessons must be learned...We cannot just accept that this was a death. We’ve got to give that death meaning, and the way to give it meaning is to pass a law.”16 This is not to say that someone’s death should not be society’s concern, at some level. However, when society’s concern automatically gets expressed as rule making, it suggests that rule making is the best way to cope with the mystery of our mortality, which is a questionable proposition. It is also a proposition held by the secularist Enlightenment behind the post-Charter civil religion I have been outlining.
Moreover, because rules can never cover all contingencies, excessive rule-making corrodes responsibility by inducing people to think the lack of a rule gives them the excuse to act foolishly, and because rule-makers promise falsely that their rules will in fact stand against all contingencies. In corroding responsibility, the bureaucratic state stands above individuals as a paternalistic, god-like behemoth, which Alexis de Tocqueville, writing in the 1830s, already foresaw in his book Democracy in America.
The authority of the Court and of the bureaucracy has eclipsed that of our legislatures, the historic and principal home of self-government in our constitutional tradition, because Canadians have come to believe the lawyer’s adage that “judges argue, politicians deal.” Legislatures, with their grubby side deals, negotiations, and barrel-rolling, are seen as incapable of bringing about ideals of autonomy, equality, and tolerance that progressives love, because those ideals necessarily get compromised in shady deal-making for pet projects. Consider the success of Stephen Harper as Prime Minister, who learned a thing or two from Mulroney and Chrétien, as compared to Stéphane Dion, who did not.
Progressivism wants to move “beyond politics” by moving policy debate beyond the give and take of politics into an ethereal realm where progressivist positions are beyond debate, and thus take on a sacred quality. The progressivist starts with the basic insight of liberal constitutionalism, which is that certain freedoms are enshrined in laws, never to be negotiated away, but extends that so that their policy preferences get upgraded to a status of sacredness that make it impossible for one to argue against them without being tarnished as “racist,” or “homophobic.”17 The attempt to move politics “beyond politics” also means the institutions effecting that move, such as the Court and the bureaucracy, themselves become sacralized. In attempting to create the autonomous individual, progressive politics undermines the individual’s liberty and pride in self-government. Progressive politics deifies the state and shuts up real policy debate.
"OPEN CIVIL RELIGION"
I call the civil religion about which I have been speaking “closed” because it combines the deification of the state with the assumption that the meaning of our lives as human beings can somehow be consummated by our identity as Canadian citizens, or at least as progressive liberal democrats.
The state acts upon individuals and ends up corroding civil society, which is that intermediate area between the individual and the state in which we participate as members of communities, including unions, schools, hockey teams, community associations, and businesses. Just as the “closed” civil religion finds its natural home in the courts and bureaucracy instead of the legislature, so too does it corrode self-government as practiced outside of the official halls of power. Why organize a community clean up of the river valley when city employees will do it instead?
Are we fated to deify the state? Is an “open” civil religion possible, if such a phrase is anything but an oxymoron? I think we are seeing some movement toward an “open” civil religion, if I may speak of such a thing. Permit me to sketch out my case and to connect a few dots.
In Canada, while we have numerous think tanks and lobby groups defending individual freedoms and civil society, Cardus and the Centre for Cultural Renewal have been among the few voices speaking in favor of the culture of self-government that necessarily gets expressed through local communities and organizations of individuals acting in concert with one another. Cardus’ 29to42 tax proposal, which would free up money and energy for charitable organizations, is an important way of opening up civil society. I would also say the Conservatives’ 2006 election platform, in providing tax breaks to middle class parents for things like hockey equipment, was motivated by the idea that government can benefit Canadians with vouchers and other opportunity-creating and choice-maximizing mechanisms and therefore allow Canadians to practice the arts of self-government in their own communities, instead of being dependents of the state. Thus, the popularity of daycare tax credits instead of government-run daycares. Ray Pennings and Michael Van Pelt refer to this change as the break-up of the pan-Canadian consensus, which it might be, though I would characterize it as a reconfiguration of our state to one that maximizes choices for individuals and communities without necessarily providing the means of fulfilling those choices.18
Finally, despite my criticisms of our Supreme Court—especially of the way it has articulated its mission—I think at least in terms of religious freedoms and the more vexing problem of freedom of religious communities, the Court has acquitted itself honorably. In Syndicat Northcrest v. Amselem, the Court upheld the right of orthodox Jews to set up their “succahs” in contravention of their condominium bylaws. In so doing, the Court argued that the right of religious freedom should be taken from perspective of religious group facing limitations. Such statements indicate we have moved beyond “reason before passion.”
“Civil religion” is a perennial problem for political order because our common life as citizens always has a spiritual or religious component to it. Each of our actions, as individuals and collectively, includes an implicit faith of the aim of those actions. Our choices of what we shall do are also choices of what we are and shall become.
We are thus confronted with the problem of whether Canadians can and will craft a civil religion that is also not “closed.” Is “open” civil religion an impossibility? To an extent it is, as any political society will be closed to a variety of human beliefs and customs.
Drawing inspiration from the work of Cardus and the Centre for Cultural Renewal, as well as from the theoretical insights of thinkers like Alexis de Tocqueville of the nineteenth-century and David Walsh of the twenty-first century, I think something like an “open” civil religion can be identified.
For all the differences between liberals and conservatives, they share a sense that the human person has an impenetrable depth that no government can nor should attempt to touch. The human person transcends not only government’s capacity to control it, but also our capacity to understand it. With their abstractions, progressives fall prey to the same temptations that totalitarian regimes give into, which is that they think they have all the answers to life’s mysteries in advance.19
Conversely, defenders of self-government are also the defenders of human dignity when they argue that the human person is revealed when she is involved in self-government, in the life of the community. Dignity is primarily found in self-government, not in having the Courts uphold them for you. Aristotle stated this point when he argued that our moral character is best revealed when we rule over another.20 Only when we have power over another, or are acting in concert with another, can we see what our moral fiber is made of.
As usual, Alexis de Tocqueville is our best guide to the human person’s self-government in modern democracy. In Democracy in America, written in the 1830s, he criticizes the progressivists of his day for their proclivity toward abstractions. Such people fail to see the dignity of engaging in politics and self-government, which, in forcing them to see their ideas in the concrete, would mature them and render them better able to practice justice.
Self-government is not the sordid display of raw self-interest that so appalls the progressivist. Rather, self-government entails a moral transformation where we discover ourselves in reciprocal action upon others. Tocqueville writes: “One is occupied with the general interest at first by necessity and then by choice; what was calculation becomes instinct; and by dint of working for the good of one’s fellow citizens, one finally picks up the habit and taste for serving them.”21 In the next chapter of Democracy, he memorably observes of the miracle of participation: “Sentiments and ideas renew themselves, the heart is enlarged, and the human mind is developed only by the reciprocal action of men upon one another.”22
Tocqueville’s prose contains the central insight of liberal democracy, which is that the mystery of the human person is revealed in the practice of self-government and in the everyday reciprocal actions we have on one another. In illuminating the insufficiency of language and even of philosophy or theology to explain what gathers us together, Tocqueville reminds us of the ineffable ground that brings us together.
This recognition of our deficiency in ascertaining what gathers us together is an example of “open” civil religion, as opposed to the “closed” civil religion of the progressives. “Open” civil religion is a little harder to understand because it is more elusive and avoids grand gestures and statements of world-historical importance. Even so, the reciprocal action upon one another in politics reminds us that friendship is a—perhaps the—central category of politics, because in those reciprocal actions, we find unique persons in our midst, and we ally with those in our projects in a process of moral growth. Politics is conducted by networks of friends.
Moral conversion takes place—and is indeed required—in self-government. I may enter politics perhaps to glorify myself and to “change the world” in my own image, but I quickly learn that I am a latecomer. German scholar Tilo Schabert admirably captures this personalist encounter with the other in the political arena:
The reality of politics is that of the many, each of whom has his own will and intentions, his own routes and aims, his own projects for actions and notions of life, personal itineraries and stations in the world, infinite possibilities in an infinitely free play of human connections, engagements, configurations, attachments, dissolutions, agreements, enmity, collisions, conflicts, friendliness, estrangement, dissension . . . 23
Self-government means “you cannot plan . . . you can only participate.”24 Our face-to-face interactions with others constitute a school for virtue insofar as in each encounter, each of us confronts the mystery of human otherness, which is the basis of our dignity. In confronting the mystery of otherness in self-government, we confront ourselves. Self-government means just that—government of one’s self.
Unfortunately, what I have called the secularist civil religion has led many Canadians to abhor this personalistic and creative sense of political activity, because we like our leaders to be in greater control than this realistic description attests. Moreover, Canadians have also come to abhor the tenet of responsible government that says that politicians acting for partisan reasons can actually do some good. Canadians have bought the lawyer’s line—“judges argue, politicians deal”—hook, line, and sinker, and have taken away moral authority from elected politicians and given it to jurists, bureaucrats, and (most recently) officers of Parliament, because all are believed to be non-partisan. However, the failure of our representative institutions is also a failure of self-government, which, as I said, is based on a moral practice in which all citizens participate. For these reasons, I tend to agree with Tom Flanagan, who recently argued that the current crisis of Parliament is really a moral crisis in leadership, which no institutional reform can adequately address.25
The same argument can be applied one level down, in civil society and the health of our civil and religious associations that form the identities and, indeed, souls of most of us. Precisely because modern democracy tends to isolate individuals from one another and thus makes us ever more dependent on the state, Tocqueville calls the art of associating the “mother science” of the modern age. It is the most difficult and the most important. It is the most difficult because nearly everything about living in a liberal democracy is hostile to the creation of associations. This alchemic art is thus a “holy enterprise,” because its goal is the defense of human dignity against what conspires against human dignity.
The project of self-government—our very souls—depends on our capacity to form and sustain civil associations. Trudeau’s “reason before passion” neglects the pride we take in self-government, and which is a surer way to defend liberty. As Hannah Arendt said, human rights doctrines never protected the Jews from the Holocaust, but self-government just might.
The problem with this personalist or “open” sense of civil religion I have just sketched is that it does not avail itself to succinct slogans of mass society and principles of contemporary jurisprudence. The mystery of the human person, and our reciprocal action upon others, is such that no rule of jurisprudence or political doctrine can fully capture it. Humans simply cannot be reduced to words. Liberty can only be defended in the practice of it, because our humanity is best glimpsed in our actions that reveal it.
SELF-GOVERNMENT AND RELIGIOUS ASSOCIATIONS
As I mentioned, the freedom of religious organizations is a critical barometer of the overall health and openness of society because, as religious organizations, their traditions and purposes precede and transcend the scope of our political regime. How our laws treat them reveals something important about the self-limitations of our political regime.
The Ontario Court of Appeal recently overturned a Human Rights Tribunal decision forcing Christian Horizons to abolish its lifestyle code, which includes the prohibition of homosexual behavior among its employees.26 The Court decided, in light of Supreme Court decisions, that religious organizations need maximum freedom to flourish. However, it also chastised Christian Horizons for the way it had constructed its lifestyle code. The code was set up as a list of prohibited activities, the first of which was the use of tobacco products, with the prohibition of homosexual activity listed further down.
Christian Horizons had inadequately explained how these prohibitions serve the purpose of their organization, which is to serve the disabled. Thus, prohibiting homosexual conduct was—with good reason—seen as arbitrary. Instead of listing prohibitions, it should not be difficult for Christian Horizons to explain what they are for and how their rules serve that purpose. Failure to say what you’re for simply enables your opponent to say it for you. Saying what you are for instead of what you oppose is also a better way of practicing charity and serving the public good. It is part of self-government.
I understand there are theological reasons to list only prohibitions. Demanding reasons for behavior is to demand reasons from God instead of obeying Him. However, this view has its own set of problems, which I think are more corrosive to self-government than my counsel to say what you’re for. The religious practitioner who obeys God still makes an implicit claim to understand God, however incompletely. Accordingly, the secularist who does not obey God has failed to understand God. The secularist fails to understand the religious practitioner’s position because he has not “heard” God’s call. Thus, the religious practitioner can too easily take his failure to persuade the secularist as a sign of his own sanctification. Being subject to ridicule or even persecution is an even surer sign of one’s own election.
I think this cheapens what it means to be a religious practitioner—not to mention a martyr. It also corrodes self-government because it corrodes the capacity of Canadians to identify with one another as citizens. There is no opportunity for Tocqueville’s “enlargement of the heart” in reciprocal actions among citizens. When faced with the incomprehension of the secularist, the religious practitioner should always ask himself whether that incomprehension is due to the failure of the other’s secularism or due to the anomie that our democratic individualism creates in us. Religious practitioner and secularist alike too easily fall prey to this spiritual individualism that corrodes self-government. Tocqueville forcefully reminds us that we modern democrats tend to regard one another as strangers, and thus lack those bonds of sympathy and mutual understanding that might otherwise exist among citizens.
So, between the religious practitioner who fears impiety for articulating reasons for her public actions, and the religious practitioner with a false sense of martyrdom, I think the latter causes greater problems for the religious and for our regime, because she gives in too easily to the regime’s vices and ultimately cedes the argument over to those who advocate the “closed” progressive kind of civil religion outlined above. Making arguments about what you are for reminds you and your fellow citizens that religious arguments and organizations are part of the fabric of Canadian public life.
In counseling religious organizations to tell their stories and to explain their reasons, I am not suggesting that the appropriate language for religion in liberal democracy needs be our immediate concern. Debating about the terms of the debate runs into the same problems of abstractions that the secularists get into. Instead, if the practice of self-government is greater than our efforts to conceptualize it, then the religious practitioner needs to ask himself whether he has made a good faith effort to appeal to the human good that all human beings seek. After all, evangelizing is not primarily about evangelizing others in your own religious community.
Such an effort at persuasion is not a language game, but is the effort of a common life in which each of us opens himself or herself up to the mysterious other facing us. This, as Ray Pennings has observed, is the core mission of the church, and the basis of its calling as a unique institution that is critical for society’s moral ecology or sense of civic virtue.27 The opening toward the other occurs primarily in the corners and intersections of our communities, and this forms the basis of what occurs in the corridors of power. Our post-Charter secularist civil religion, which I think is on the wane, is about slogans and is an ideology of control. A more “open” civil religion of the human person is quieter and more dignified. I also think it is more Canadian, for is not quiet dignity the quintessential Canadian virtue?
1. Douglas Bland, Uprising: A Novel (Toronto: Blue Butterfly Book Publishing, 2009), 474.
2. I have provided more extensive analyses of these three crises of legitimacy in three essays: “The Charter and Civil Religion,” in Faith in Democracy?: Religion and Politics in Canada, eds., John Young and Boris DeWiel (Newcastle upon Tyne: Cambridge Scholars Publishing, 2009), 36-60; “Civil Religion and Associational Life under Canada’s ‘Ephemeral Monster’: Canada’s Multi-Headed Constitution,” in Civil Religion in Political Thought: Its Perennial Questions and Enduring Relevance in North America, eds., Ronald Weed and John von Heyking (Washington, DC: Catholic University of America Press, 2010), 298-328; with Elise Ray, “Multiculturalism and Problems of Canadian Unity,” in Political Cultures and the Culture of Politics, eds., Jürgen Gebhardt (Heidelberg: Universitätsverlag Winter, 2010), 109-30.
3. Iain Benson, “Considering Secularism,” in Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy, ed., Douglas Farrow, (Montreal-Kingston: McGill-Queens University Press, 2004) 83-98; Living Together with Disagreement: Pluralism, the Secular, and the Fair Treatment of Beliefs in Canada Today (Camrose, AB: The Chester Ronning Centre for the Study of Religion and Public Life, 2010).
4. My usage of “open” and “closed” borrows from Eric Voegelin and Henri Bergson, not Karl Popper. The “open” society corresponds to the soul that is “open” to the divine ground of being and is capable of experiencing classically defined virtues including faith, hope, love, justice, practical wisdom, courage, and moderation. These are the virtues upon which the rule of law is made possible. Without them, law is either powerless or despotic. The “closed” society and the “closed” soul are expressions of hubris and despair, in short, the opposite of the list of virtues just listed (Voegelin, “Experience and Symbol in History,” in The Collected Works of Eric Voegelin, vol. 12, ed. Ellis Sandoz [Columbia, MO: University of Missouri Press, 1990], 119-20). Elsewhere, Voegelin characterizes the Popperian account of the “open society,” in favour with many of a classically liberal stripe, as an order evoked “to prevent public collisions between private opinions,” where “private opinions” are those held by those incapable of the virtues listed above (“Immortality: Experience and Symbol,” Ibid., 72).
5. Eric Voegelin, The Political Religions, in The Collected Works of Eric Voegelin, vol. 5, ed. by Manfred Henningsen (Columbia, MO: University of Missouri Press, 2000), 70.
6. See The Right Reverend Bishop Strachan, “On Church Establishment,” in Canadian Political Thought, ed., H. D. Forbes (Oxford: Oxford University Press, 1985), 10-17; Ramsay Cook, The Regenerators (Toronto: University of Toronto Press, 1985); William Lyon Mackenzie King, Industry and Humanity, ed., David Bercuson (Toronto: University of Toronto Press, 1973). For the nineteeth century, see Preston Jones, “Sacred Words, Fighting Words: The Bible and National Meaning in Canada, 1860-1900,” in Civil Religion in Political Thought, 280-97; A Highly Favored Nation: The Bible and Canadian Meaning, 1860-1900 (Lanham, MD: University Press of America, 2008).
7. This recent example, from one of Canada’s top scholars of public administration, suffices: “[In the Secession Reference], the court ruled that Quebec did not have such a right and based its decision on four fundamental rights: federalism, democracy, constitutionalism, and the rule of law. Canada’s written constitution dates back to 1867, and one would be hard pressed to see these principles in it, certainly in pre-Charter days. The Canadian Senate, it will be recalled, was established as a check on democracy and federalism, both of which were only reluctantly embraced. As Adam Tomkins writes, it may be more accurate to say that Canada in 1867 was based on principles of ‘elitism, racism, sexism and imperialism than on the four good things that the Supreme Court identified’” (Donald Savoie, Power: Where Is It? (Montreal-Kingston: McGill-Queens University Press, 2010), 72-3). I agree with Janet Ajzenstat’s Lockean reading of the Canadian constitution. However, because her focus is on the practical choices of the founders, she has left the broader relationship between Locke’s natural rights republicanism with the revelatory context in which Locke invoked it unaddressed. See Janet Ajzenstat, The Canadian Founding: John Locke and Parliament (Montreal-Kingston: McGill-Queens University Press, 2007) and The Once and Future Canadian Democracy: An Essay in Political Thought (Montreal-Kingston: McGill-Queens University Press, 2003); on the revelatory context of Locke’s political philosophy, see David Walsh, The Growth of the Liberal Soul (Columbia, MO: University of Missouri Press, 1997), especially 150-58.
8. Irwin Cotler, Speech to Parliament of Canada, Hansard, (37th Parliament, 2nd session) October 28, 2002 (http://www.parl.gc.ca/37/2/parlbus/chambus/house/debates/016_2002-10-28/han016_1355-E.htm).
9. According to Lorraine Weinrib, the Charter revolution makes “clear that the relationship between the individual and the state is primary and direct—that is, undiminished by personal characteristics and unmediated by given or chosen social affiliations. In establishing this relationship, the Charter severs the individual from the social and political framework of informal religious establishment” (“Ontario’s Sharia Law Debate: Law and Politics under the Charter,” in Law and Religious Pluralism in Canada, ed., Richard Moon [Vancouver: University of British Columbia Press, 2008], 246-47).
10. Alexis de Tocqueville, Democracy in America, trans., Harvey Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000), 2.4.3, 664n1.
11. Jeffrey Simpson, “Leave the Prayerbook at Home, Stockwell,” Globe and Mail (Toronto), March 31, 2000, A15.
12. See “Lord Cooke Lecture,” Wellington, New Zealand, 1 December 2005 (http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm05-12-01-eng.asp); “Freedom of Religion and the Rule of Law: A Canadian Perspective,” in Recognizing Religion in a Secular Society, 14. For details, see my “The Charter and Civil Religion,” 44-53.
13. Benson, Ibid.; see also my two reflections on the state of religious freedom 25 years after the Big M. Drug Mart (1985) decision: “Self-Government And Religious Liberty Are One And The Same,” C2C: Canada’s Journal of Ideas, September 2010 (http://www.c2cjournal.ca/blog-articles/view/selfgovernment-and-religious-liberty-are-one-and-the-same) and “Religious Freedom in the Wake of R. v. Big M Drug Mart,” The Interim August 2010 (http://www.theinterim.com/features/religious-freedom-in-the-wake-of-r-v-big-m-drug-mart/).
14. For details, see my “Civil Religion and Associational Life,” 318-20.
15. See Barry Cooper, It’s the Regime, Stupid! A Report From the Cowboy West on Why Stephen Harper Matters (Toronto: Key Porter Books, 2009), 191-222.
16. Joseph Brean, “Canada’s Addiction to Rule Making,” National Post, August 7, 2010 (http://www.nationalpost.com/news/canada/Canada+addiction+rule+making/3371419/story.html)
17. Conservatives (both large “C” and small “c”) have their own version of calling the views of progressives into question. This is done either by dismissing them as “elitist” or as unpatriotic. However, unlike in the United States where conservatives can tap into a strong sense of American patriotism, appealing to Canadian patriotism is fraught with peril on account of Canada’s regionalism, which is the first area of the Canadian polity where the legitimacy of our regime is contested.
18. Ray Pennings and Michael Van Pelt, “Replacing the Pan-Canadian Consensus,” Policy Options, March 2006: 52-57. Similarly, Philip Bobbitt refers to the constitutional order emerging after the Cold War as the “market state,” which differs from the nation-state by focusing efforts in maximizing the opportunity of its people, tending to privatize many state activities and making representative government more responsive to the market and to civil society (The Shield of Achilles: War, Peace, and the Course of History, [New York: Alfred E. Knopf, 2002], 228-42). Bobbitt’s treatment, while it has the advantage of seeing the emergence of the market-state within the broader framework of constitutional history and the interaction between war strategy and international affairs with domestic constitutional politics, remains too narrowly defined, in terms of economics.
19. See Walsh, The Growth of the Liberal Soul.
20. Aristotle, Nicomachean Ethics, 1130a1.
21. Tocqueville, Democracy in America, 2.2.4, 488.
22. Ibid., 2.2.5, 491.
23. Tilo Schabert, “A Classical Prince: The Style of François Mitterrand,” in Philosophy, Literature, and Politics: Essays Honoring Ellis Sandoz (Columbia, MO: University of Missouri Press, 2005), 244-5.
24. Tilo Schabert, Boston Politics: The Creativity of Power (New York: Walter de Gruyter, 1989), 285.
25. According to Flanagan, more important than institutional reforms to producing civility “are the moral and constitutional foundations of liberal democracies, including “a spirit of constitutionalism . . . respect for rule of law, an impartial judiciary, representative government with periodic elections, a widely distributed franchise, private property rights and a market economy” (“A Canadian Approach to Power-Sharing,” Policy Options, September 2010: 34). More broadly, civility presupposes trust (see Jürgen Gebhardt, “Friendship, Trust, and Political Order: A Critical Overview,” in Friendship and Politics: Essays in Political Thought, eds., John von Heyking and Richard Avramenko [Notre Dame, IN: University of Notre Dame Press, 2008], 315-48).
26. Ontario Human Rights Commission v. Christian Horizons 2010 ONSC 2105, Court File No.: 221/08, 14 May 2010
27. Ray Pennings, Public Religion in a Privatized Society: The Role of Christianity in a Secular Society (Association for Reformed Political Action, 2010), especially 16-17.
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