Did We Get a Good Constitution in 1867?
Did We Get a Good Constitution in 1867?

Did We Get a Good Constitution in 1867?

The Fathers of Canadian Confederation were more knowledgeable—indeed more philosophical—than commentators suppose.
January 1 st 2003

According to the Dominion Institute, Canadians regard Confederation as the most significant event in our history. Not surprising! But significant is one thing, and good is another. Did we get a good constitution in 1867? What do Canadians say on this point?

Here's one opinion: "The Americans rightly revere their founding fathers; the American constitution is a magnificent thing. The Fathers of Confederation, on the other hand, should have been horsewhipped. . . . Maybe it was the champagne at Charlottetown, or the rain at Quebec. But the framers of the British North America Act bequeathed Canada one of the democratic world's worst constitutions" (John Ibbitson, The Globe and Mail, August 2000).

I don't think many Canadians go as far as Ibbitson. But quite a few believe the Canadian constitution today has deficiencies, and some argue that those deficiencies can be traced to the original 1867 design. It is often said that while the American founders were distinguished political philosophers (Jefferson, Hamilton, Madison), ours were just politicians—shrewd enough to do a deal, no doubt, but not at home with political ideas. Peter Waite, dean of Confederation historians, writes, "Confederation had a fundamentally empirical character" ( The Life and Times of Confederation, 1962).

Others put it more strongly:

  • "The Canadian Fathers in contrast to the U.S. Founders were ignorant of philosophy" (F. H. Underhill, The Image of Confederation, 1964).

  • "Unlike Americans in the eighteenth century . . . Canadians have never experienced the kind of decisive break with their political past which would have impelled them to debate and resolve fundamental political questions" (Donald Smiley, Canada in Question, 1980).

  • "It is hard to get excited about the handiwork of railway buccaneers and their kept lawyers" (Philip Resnick, Parliament vs. People, 1984).

  • "It is well known that the Fathers of Confederation were pragmatic lawyers for the most part, more given to fine tuning the details of a constitutional act than to waxing philosophical about human rights or national goals" (Ramsay Cook, Cité Libre, 2000).

That's the consensus. The Fathers of Confederation couldn't see past the end of their noses, and, as a result, we got a constitution good enough, perhaps, for the nineteenth century but not good enough for the ages. Not good enough for our time.

In the Canadian Historical Review (1990), Phillip Buckner suggests that the Fathers knew little about democracy and cared less: "Everyone knows that the Fathers of Confederation were not democrats." But consider. The British North America Act, 1867 still regulates our national politics. We've made a few changes to it over the years, but only a few. We've changed its name—it is now the Constitution Act, 1867. In 1982, we added a constitutional bill of rights (the CanadianCharter of Rights and Freedoms) and an amending formula.

But the addition of the new constitutional document did not demote the old one. The BNA Act remains. It describes, among other things, our present parliamentary institutions and form of government. Buckner's statement, "Everyone knows," suggests that Canada today is not a democracy. We got off to a bad start at Confederation, and we are still in trouble.

In Constitutional Odyssey (1992), perhaps the most widely read political-science textbook on Canadian constitution making, Peter Russell contends that Canadians did not "come together as a sovereign people" at Confederation and more than 130 years later have still not come together. As he notes, a nation that does not "come together as a sovereign people" lacks legitimacy. He concludes that our nation and system of government are impaired, in some hard-to-define fashion. Canada lacked legitimacy in 1867 and still lacks it.

As a vote of non-confidence in Canadian constitutionalism and parliamentary government, the statements by Buckner and Russell are striking. In the academic world, they go unchallenged.

In this article, I hope to show that the Fathers of Canadian Confederation were more knowledgeable—indeed more philosophical—than commentators suppose and that we got a good constitution in 1867, a democratic constitution that has stood the test of time. I don't argue that it's perfect. All human institutions are flawed. I don't suggest that it cannot be improved. But I do think it has given us one of the best records on human rights and good government in the modern era.

The Fathers Weren't the Whole Show

The idea that the Fathers of Confederation did not care about democracy and legitimacy has a certain credibility (not much) if scholars focus—as they usually do—on the Fathers' deeds and words at the Charlottetown and Quebec Conferences of 1864. What came out of those meetings was a proposal for the federation of the British North American colonies under a general government with parliamentary institutions. It took the form of 72 constitutional recommendations, called the Quebec Resolutions, which were entrenched, with only a few modifications, in the Constitution Act, 1867. It has to be admitted that the Resolutions and the Act are written in dry legalese. At first blush there does not appear to be evidence of deep cogitation; at any rate, there's no high-flying rhetoric of the kind we find in the American founding documents.

But the Fathers were not the whole show at Confederation, and the constitutional process didn't end with the Quebec Resolutions. The union proposal had to be ratified in the representative assemblies of the seven colonies. The rule was simple. A colony that did not pass a legislative resolution to endorse union could not join! All the colonies, including Newfoundland, held ratification debates, and in those debates a different picture of Confederation comes to light. (Scholars have paid relatively little attention.) The Fathers of Confederation, usually sitting on the front benches, had to justify "the deal" against considerable opposition. They faced powerful arguments from anti-Confederates, and, in the structured debate of the parliamentary arena, both Confederates and anti-Confederates found themselves digging deep for ideas and arguments. They were driven to philosophy.

They ponder ideas of liberty—political rights and personal freedom—political participation and democracy, the duties of representatives and the idea of political representation. They talk about the nature of political men, the ambition of political leaders, citizenship, national loyalty, and national identity; they talk about means to encourage obedience to law (the issue of political obligation). The Confederation debates in the colonial legislatures do not have the form of a philosophical treatise. But, yes, they are philosophical.

The seven colonies were: British Columbia, which comes into Confederation in 1871; the tiny territory called Red River (which joins in 1870 as the province of Manitoba); the old Province of Canada (comprising Canada East—once known as Lower Canada and soon to become Quebec, and Canada West, the former Upper Canada, soon to be Ontario); the three Maritime provinces; Newfoundland, which declines union in 1869; and PEI enters at last in 1873. Thus the debates on the ratification of union run from late 1864, as delegates return from the Quebec Conference, to 1873.

Before 1867, the legislators are considering the merits of the Quebec Resolutions; after 1867 they are looking at the BNA Act and considering whether to join the new Dominion of Canada. (Selections from the debates in all colonies are available, collected for the first time since Confederation, in Canada's Founding Debates, edited by Janet Ajzenstat, Paul Romney, Ian Gentles, published by Stoddart in 1999 and reissued in paperback by the University of Toronto Press in 2003.)

The Charlottetown and Quebec Conferences were held behind closed doors. The ratification debates, in contrast, were conducted in the full glory of parliamentary publicity, and the task before the legislators was a very different one. They were not drafting a constitution; they were not doing a deal. The deal had already been done. They sometimes tried to quarrel with the details of the Quebec Resolutions or the BNA Act. Indeed, they have much to say that's interesting about particular provisions.

It remains that their task was to accept or reject Confederation, and they had to think about the issue of ratifying and legitimating the new constitution. What process of debate, what process of consultation is appropriate when a constitution is being made? What justifies adoption of a new form of government, or, for that matter, what justifies continuing allegiance to an existing form of government? What justifies government in the first place?

What justifies government? In political philosophy, ancient and modern, this is the question. And since the seventeenth century, it has been a question that admits of only one answer: government is justified (it is legitimate) when grounded on popular sovereignty—that is, when grounded on the consent of the people.

In the seventeenth century, the English gave up the idea that government is legitimate when Adam's heir rules as monarch. They gave up what we call the Divine Right of Kings and adopted—some say, invented—the doctrine of popular sovereignty. And in the years and centuries after, every nation, or almost every nation, followed England's lead. Popular sovereignty may be an invention, but it is our invention, the one that defines the modern political era. It is the one we subscribe to in the democracies. (Even modern autocrats use the rhetoric of popular sovereignty, the better to exploit their population.) A good book on the topic is Edmund S. Morgan, Inventing the People, The Rise of Popular Sovereignty in England and America (1988). In the absence of popular consent, there is no legitimate rule.

Examining the Debates

If Peter Russell's charge is true, that Canadians in 1867 did not constitute themselves "a sovereign people," Canada is an amazing exception among modern states! Russell says "at Canada's founding . . . there was not even a sense that a constituent sovereign people would have to be invented." Not only did the Canadian founders fail to consult the people. They refused even to think about consultation.

Let me suggest that Russell has been misled by the historians' lack of interest in the ratification debates. It's time to take a look for ourselves. Consider the following selections from the ratification debates:

  • "[The] question under discussion is one of great importance to our people. . . . I shall not be prepared to vote for a union until after they shall have been consulted and the question discussed among them" (W. H. Pope, Prince Edward Island House of Assembly, April 18, 1864).

  • "The Constitution [of the colony] was granted, not to the House of Assembly, but to the people of Newfoundland, and he considered the people were entitled to be consulted before we came to a decision on the subject" (Thomas Glen, Newfoundland House of Assembly, February 2, 1865).

  • "[The] people [are] the only rightful source of all political power" (James O'Halloran, Canadian Legislative Assembly, March 8, 1865).

  • "[The] only way in which the constitution of a free, intelligent, and independent people can be changed at all, is by revolution or the consent of the people" (William Gilbert, New Brunswick House of Assembly, March 26, 1866).

  • "The principle which lies at the foundation of our constitution is that which declares the people to be the source of political power" (William Lawrence, Nova Scotia House of Assembly, April 17, 1866).

  • "When certain terms have been agreed upon between the government of this colony and the dominion parliament, they will come back to the people for ratification. . . . It is for [the people] to say whether they will have Confederation or not" (J. S. Helmcken, British Columbia Legislative Council, March 9, 1870).

Not all the legislators sound exactly the note of the speakers above. There remains a vexing question. How are the people to be consulted? How are they to give their consent to Confederation? Will resolutions in the colonial legislatures suffice? Or must the sovereign people be consulted directly in referendums?

But I am running ahead of my argument. The point I wish to make at this stage is that all the legislators acknowledge popular sovereignty as a necessary principle. They differ about means to give the principle effect, but they all accept the principle. Confederates and anti-Confederates, frontbenchers and backbenchers, Liberals and Conservatives, Grits, Rouges, and Tories: all believe the people are "the rightful source of political power." In each province, in each colony, the people had to be consulted—in some fashion or another.

Popular Sovereignty and Equality

Why is the popular-sovereignty issue important? I started by asking whether we got a good constitution in 1867. To this point, my argument has been that we got one that acknowledges the principle of popular sovereignty. I haven't yet said what it is about popular sovereignty that makes a regime good.

Popular sovereignty is one of those constitutional principles, like the "rule of law," that embodies, expresses, and teaches that all persons subject to the law must receive equal treatment. Everyone has an equal right to life and liberty. Everyone is equally entitled to peace, order, and good government. The teaching that the people are sovereign emphatically asserts the idea of human equality familiar from the seventeenth-century philosophers such as John Locke.

As Edmund Morgan suggests, there is a certain "mythic" quality to the doctrine. In the ideal and abstract world of the seventeenth-century philosophers, the doctrine of popular sovereignty required that a new political founding or change of constitution be agreed to by each and every person in the land. Imagine each and every person raising her hand, making a mark on parchment, or shouting "yea" in a great assembly.

Popular sovereignty required the consent of everyone who would be bound by the coercive elements of the new form of government, everyone who would benefit from its laws. Of course in the real world it is impossible to obtain every last individual's consent. Certainly it was impossible in the seventeenth century. But the conviction that each one and everyone must equally consent remained, and, still today, the idea of equality in this basic sense clings to the term popular sovereignty.

Thus in a regime founded on popular sovereignty (I am speaking of theory; practice always lags) no one, whatever his or her birth, religious belief, wealth, or ethnic origin, can escape the consequences of the law of the land. All are equally obliged to obey. And no one, whatever his or her birth, creed, wealth, ethnic origin, has an automatic right to rule. That's John Locke's teaching. We accept it today as a given; the idea is familiar from long years of tradition and experience under the British common law. It is now enshrined in the Canadian Charter of Rights and Freedoms.

It is not wrong to trace Locke's arguments for the rule of law and human equality to a much earlier period. It's not wrong to see a biblical origin. The Bible says that all humanity is the offspring of one couple. There could hardly be a stronger assertion of human equality. There are no naturally superior peoples, no natural ruling races. We're all brothers and sisters originally. That we're all equal in this sense has never been forgotten in the prayers and hopes of the three great monotheistic religions, though often neglected and scorned in practice.

Nevertheless, as a practical teaching, we usually say that political and legal equality finds its expression in the seventeenth- and eighteenth-century struggle against Europe's absolute rulers. If liberal democracy has a single birthday, it is 1688, the date of Britain's Glorious Revolution, when the representatives of the people in Parliament gained unquestioned ascendancy over the English kings and queens.

Popular sovereignty is not a sufficient prescription for the good constitution. It is not a sufficient prescription for equality. And equality is not the only good cherished by liberal democracies. I have already hinted at the idea that modern autocrats sometimes justify corrupt rule through an appeal to popular sovereignty. I cannot pursue this idea here, though it is one that haunts some speakers in the Confederation debates. I want to say merely that the teaching on popular sovereignty argues powerfully for equality under the law. To say that Canadians at Confederation did not "come together as a sovereign people" is to say that Confederation did not recognize political and legal equality.

The surprising thing is that many scholars happily accept the idea that the 1867 constitution does not acknowledge and enshrine equality. Thus it's often said that Canada at Confederation was a conservative country, a Tory country, favouring one political party and one ideology. The constitution of 1867 was conceived and executed by John A. Macdonald's Conservatives—so goes the argument—with the result that Canadians are readier than Americans to defer to authority and to social elites; they're less eager to assert their equality; they're more docile and more peaceable.

George Grant makes the argument that Canadians are, or were, deferential in Lament for a Nation (1965). Let me say emphatically that I have found nothing in my study of the documents on Confederation to support this proposition. The idea that Canada was made for Conservatives boggles the mind. Did members of the Liberal party good-naturedly accept second-class status? Liberal party leaders were present at the Charlottetown and Quebec Conferences. Liberals, Liberal-Conservatives, Rouges, and Clear Grits were present in the ratification debates.

A constitution founded on popular sovereignty (the equal consent of all) cannot favour one party (one part of the population), or one ideology. It cannot—it should not—favour particular programs, or regions, or classes. It would take a longer essay to explore the issue fully. All I can say here is that in the Confederation debates, there is evidence in plenty to show that the founding legislators, including the Fathers, believed they were ratifying a constitution that would acknowledge the inherent equality of all under law, without ideological, class, or regional bias. I am not suggesting they were entirely successful. I am saying merely that they struggled to honour the principle of equality under the law.

Just as it is sometimes said that Tories made the constitution, so it is sometimes said that Britain made it. But the principle of popular sovereignty adamantly rejects the idea that one nation can make a constitution for another. Let me be more precise. One nation can draft a constitution for another, but it cannot ratify it for the other. As it happens, the British did not draft the British North American constitution. Nor did they ratify it. It is true that the Parliament of Westminster passed the British North America Act in final form. The Constitution Act, 1867 is a statute of the British Parliament. But though Britain added the final touch of legality (considered necessary to maintain the Dominion's connection with the Empire), the determination to unite originated in the colonies and was ratified in the colonial legislatures. A helpful source on this point is G. P. Browne (ed.), Documents on the Confederation of British North America (The Carleton Library, 1969). Colonial ratification was crucial. Without it there would have been no union and no Dominion of Canada.

The thing to remember is that popular sovereignty and its attendant idea of equality are as much a part of the Canadian heritage as of the American. There is nothing in our constitution to say that we're supposed to be more deferential; there's nothing to suggest we should be doffing our caps and bowing the knee. The idea that Canadians are inclined to deference is something a certain strand of scholarship and a certain kind of political leadership has struggled mightily to inculcate.

Consulting the People

Let's look at the arguments about method.

How were the people supposed to signal their consent? How were they supposed to cast their vote for or against Confederation? There are two opinions, two camps. The one camp favoured some form of direct democracy—perhaps a referendum, or perhaps a single-issue election. In Nova Scotia, the anti-Confederates flocked to this position. They were convinced that a referendum would go against Confederation. But there were also Confederates in this camp, notably in the Province of Canada. Though almost all legislators in the Canadas were convinced that there was a solid majority for Confederation, quite a few continued to think the people should be consulted directly. The people's verdict was already known, but direct consultation was still necessary.

That's the first camp, the camp of direct democracy.

The second camp argued that a legislative resolution was a sufficient way to express the people's verdict, the better way, because "the legislature is the people."

"The legislature when they meet are the people, and they . . . have power to deal with all questions that may occur during their existence. They are the people for all legislative purposes and they have the power to change the constitution when they think the country requires it." (John Mercer Johnson, New Brunswick House of Assembly, July 2, 1866).

"Our constitution is constructed upon the model of the British Constitution. . . . Each representative, though elected by one particular county, represents the whole country [province], and his legislative responsibility extends to the whole of it." (Joseph Cauchon, Canadian Legislative Assembly, March 6,1865).

The argument is that the whole population of the colony is represented in the colonial parliament, not just the majority party and not just the electorate. This is a very old idea in the law of the English-speaking countries; on it rests the hope of political deliberation in the national interest. (Edmund Morgan gives the history of the notion in Inventing the People).

What concerns us here is that this old idea affirms parliament's constituent power; it argues that parliaments have the legitimacy to act as constituent assemblies and to make constitutions in the name of the people. If a parliament represented only a winning coalition, or party, it would not have the constituent power. As I have already said, the doctrine of popular sovereignty insists that a party or part of the populace cannot make a constitution for all. But if, as the old tradition argues, parliament indeed represents everyone, every child, woman, and man, every inhabitant, every transient sojourner, then parliament is in a position to act as the voice of all. Parliament is the voice of the sovereign people. Parliaments can make constitutions.

Or can they? That's the issue. Everyone agreed that the people's consent—and only the people's consent—legitimates a change of constitution. The question is whether a parliamentary resolution gives a voice to that consent. There are powerful arguments in both camps.

The Referendum Option

The referendum camp argued that the act of making a new constitution destroys the legislature that makes it. After Confederation, the provincial parliaments would no longer have the powers and the form that they had when they passed the Confederation resolution. Each province would still have its local legislature, true, but it would be a newly constituted one. That's the contention. Confederation would tear up the old constitution of the province and bring in a new one. The new one would be in many respects like the old. The fact remains that it would be new. A new constitution. A new founding. A new social contract, if you like.

Remember Donald Smiley: "Unlike Americans in the eighteenth century . . . Canadians have 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). The legislators in these debates, especially those in the referendum camp, do not accept this proposition. They see a sharply decisive break with the past. What bothers them especially is that the Confederation resolution once passed could not be undone:

  • "You are proposing to pass a resolution upon which no man voting for it will go back to the people for the ratification of his act" (Archibald McLelan, Nova Scotia House of Assembly, April 17, 1866).

  • "Our system of government implies that you have either had the sanction of the people or intend to return to them for ratification. This bill does not contemplate that you should do that, for the very act destroys the constitution, and is contrary to the term—responsible government" (Archibald McLelan, Nova Scotia House of Assembly, March 19, 1867).

  • "This Confederation strikes at the whole constitution of the country, strikes at the constitution of this house, and if carried no subsequent house could alter or repeal what we might do. No subsequent house could retrace the steps which we had taken" (William Gilbert, New Brunswick House of Assembly, March 26, 1866).

  • "Here you propose to change the constitution—to change the whole fabric of society—in fact to revolutionize society without asking the consent of the people, and without the possibility—at any rate the reasonable possibility—of this important change ever being reconsidered." (Benjamin Seymour, Canadian Legislative Council, February 17, 1865).

  • "If we have a ministry that is not agreeable to our wishes, and that does not promote the interests of the country, we may bear with it for a while knowing that the time will come when the people will assert their rights and substitute better men, but in reference to this measure only pass it now and it will be passed forever—the doom of Nova Scotia will then be sealed" (Stewart Campbell, Nova Scotia House of Assembly, April 17, 1866).

It is the boast of parliamentary systems that one parliament cannot bind another; statutes and policies can be undone, and the fact that they can be undone is proof that we live in a free country; we can demand the repeal of legislation with some hope of success. But at Confederation, legislators were debating constitutional law, not statute law. They were founding a nation, and they looked on the act of founding as a one-time affair. Once done it could not be undone. On a one-time matter, no mere representative could speak for the people. The representative who attempted it would be usurping the people's rights. The people had to speak in their own voice.

Shall we give the victory to the referendum camp? Perhaps. But there are powerful arguments in the parliamentary camp.

The Parliamentary Option

The parliamentary camp was profoundly dubious about the wisdom of constitution making by referendum because a referendum yields at best a raw majority. It records the verdict of part of the people. The minority is excluded—a clear violation of the principle of popular sovereignty.

The foremost speaker in this camp was John A. Macdonald who argued that a decision by parliamentary majority is superior to a decision by referendum majority because parliament supremely protects the rights of the political minority. Here he is in the Canadian Legislative Assembly, describing the proposed federal parliament (February 6, 1965):

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," "minorities," he does not mean, or does not mean exclusively, ethnic or religious minorities. He is referring to the political minority, that is, the opposition party or parties in the Assembly and the upper house, and in the populace at large. The supreme benefit of parliamentary government is that it protects freedom of political speech. In most systems, the rights of the majority take care of themselves; despots (including popular despots) of all sorts must appease the majority.

The singular advantage of parliamentary democracy is that it protects both majority and minority. Only in a parliamentary system is the majority compelled to refrain from riding roughshod over dissenting minorities. In brief, parliamentary decisions are made by a deliberative process, which yields a well-considered and inclusive verdict.

Richard Cartwright agreed with Macdonald's picture of parliament's strengths: "I think that every true reformer, every real friend of liberty will agree with me in saying that . . . our chiefest care must be to train the majority to respect the rights of the minority, to prevent the claims of the few from being trampled under foot by the caprice or passion of the many" (Canadian Legislative Assembly, March 9, 1865).

That's the case for constitution making by parliamentary resolution. It has the two legs: first, a referendum vote on founding means that a majority (only) makes the new country and constitution. Second, though a parliamentary debate also ends in a majority decision, parliaments represent the entire population. (In law, parliamentary representation is considered more inclusive than the turnout for a referendum.) Moreover, parliaments have developed a process of formal deliberation that does more than referendums to include and respect dissenting opinion.

(We may not recognize Macdonald's ideal picture of Parliament. Parliamentary debate as we read about it today in the papers or watch it on the parliamentary channel does not seem to be a respectful and inclusive affair. But perhaps parliamentary debate was once closer to the ideal. Perhaps the fault lies in ourselves, dear friends. Perhaps we have something to learn from the founding legislators.)

Choices, Choices!

Is it hard to choose between the camps? I think so. The parliamentary camp, with its boast that respect for dissent and opposition is the strength of parliamentary government, regards the people as an aggregation of competing, not easily reconcilable political views. This assumption strikes me as believable. The direct-democracy camp, in contrast, often appears to be thinking of the people as an uncomplicated and homogeneous collectivity. The hope is that the people will assemble or be consulted in some fashion, and say yes or no to Confederation with one strong voice. The direct-democracy founders barely see the issue of minorities.

But what about that argument in the direct-democracy camp that says a parliamentary resolution won't do because the act of constitution making destroys the parliament that made the resolution? That's a strong contention.

I said above that parliamentary decision-making promotes freedom because parliamentary decisions can be undone. There's always another day, another vote, another election. Parliamentary decisions on ordinary law aren't forever. And—note—it's because decisions aren't forever that opposition parties must be accorded a measure of respect. The swing of the political pendulum may bring the opposition to power.

But making constitutions stops the pendulum. What happens then to freedom? What happens then to the respect for the opposition that Macdonald sees as the great benefit of parliaments. What happens to minority rights?

I'm convinced by the Confederation debates that constitution making by referendum is unsatisfactory. But I'm not entirely convinced that constitution making by parliamentary resolution is satisfactory. The fact is that constitution making, however carried out, is always contestable, always confrontational, always immoderate. As Canadians found to their grief in the constitutional shenanigans of the 1980s and 1990s. Constitution making is confrontational because the results are supposed to last forever.

So, what can we conclude? Machiavelli says: "Unhappy is the country that is required to amend its constitution." It may be that there is no satisfactory formula for political founding.

Philosophers sometimes argue that we should discover the origins of constitutions in the mists of time and history. (Edmund Burke likes this argument.) They sometimes say that constitutions should be seen as the gift of a heavenly Legislator. (Jean-Jacques Rousseau toys with this notion.) The point of these fancy constructions is to remind us that constitutions must not be seen as the product of one political party or one political class or elite. And that's a point worth remembering.

Tell Me Again How It Was Done

Well, it was a bit of a scramble.

In most instances, not all, the parliamentarians satisfied themselves that given practical circumstances, the people had been consulted and had consented. Most colonies decided to hold elections with a view to passing the necessary legislative resolution shortly afterward. British Columbia, Prince Edward Island, New Brunswick, and Newfoundland conform to this pattern, though in the case of Newfoundland the people took the opportunity of the election to reject the party favouring Confederation. The election verdict was accepted as final and the union resolution was not put to the legislature. Nova Scotia is an exception. There was no election, and though there was a parliamentary resolution in favour of union, it was made by a stale parliament (a parliament almost at the end of its term). The decision in the Province of Canada was also made in a stale parliament, but in this case legislators were well satisfied from their own communications with constituents that there was a solid majority for Confederation. Red River was a decided exception; the small colony was simply annexed by the Dominion.

The fact is that by hook or by crook, in one way or another, the Confederation legislators got us through the dangerous business of making a constitution. And they constructed, I would argue, one of the world's most successful liberal democracies.

No doubt the Constitution Act, 1867 had and has its imperfections. The ratification debates and the founding documents do reveal instances of partisanship and attempts to hijack the constitution for an ideological vision. But the claims of popular sovereignty always dragged at the participants. Popular sovereignty, equality under the law, equal citizenship: these precious principles are present in the Canadian founding as much as in the founding of any liberal democracy.

Janet Ajzenstat
Janet Ajzenstat

Janet Ajzenstat is Professor Emeritus of Political Science at McMaster University, Hamilton, Ontario. Current research interests include comparative constitutional law, Canadian democracy, and Canadian political history.


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