Making a Good Constitution Better
Janet Ajzenstat asks whether in its Constitution Act, 1867 Canada can be said to have a good constitution (Comment, January 2003). The question arises because of the seeming consensus among certain historians, political scientists, constitutional scholars, and journalists that Canada's founding had a flawed basis. Unlike the American founders nearly a century earlier, Canada's founders were mere practical politicians lacking a coherent philosophical vision who largely failed to bring together a sovereign people for purposes of self-government. The clear implication is that somehow, because of these defects, Canada lacks constitutional, and especially democratic, legitimacy.
In response, Ajzenstat is able to show, from the debates in the colonial legislatures just prior to and just after Confederation, that the political leaders of British North America were learned and visionary men who argued with a high level of sophistication the advantages and disadvantages of entering the new dominion. Indeed, all Canadians should be grateful to professor Ajzenstat and her colleagues for publishing these debates in one volume for the first time and putting them into the hands of interested readers. Even a superficial reading of the debates should put to rest a number of widely held misconceptions concerning the founding era.
However, Ajzenstat's essay raises at least three questions which I shall treat in order. First, did Canada's founders really bequeath to the dominion a new constitution? Second, even if they were in some sense believers in popular sovereignty, does this principle really constitute an adequate foundation for just government? Third, given that the "singular advantage of parliamentary democracy is that it protects both majority and minority," is the Westminster form really the best means of peacefully reconciling diversity, as Bernard Crick famously describes the central task of politics?
Did Canada's founders create a new constitution?
The answer to this question must be both yes and no. If one looks at Confederation as the establishment of a new body politic with its own distinctive legal basis, then, yes, the Fathers gave us a new constitution. The British North America Act had to be negotiated by the political leaders of the several colonies, and the Ajzenstat volume underscores the hard-fought parliamentary battles surrounding this new political enterprise.
Once agreement was finally forthcoming, initially among only Canada, New Brunswick, and Nova Scotia, it took an act of the British Parliament to set up a federal Dominion of Canada. This act provided for a number of institutions of government that would unite the separate colonies—soon to become provinces—without extinguishing their distinctive political identities and autonomy. In short, it established a federal division of powers nearly unprecedented within the British Empire but which would come to influence the subsequent creation of Australia in 1901, the Union of South Africa in 1910, and independent India in 1947.
There is a sense, however, in which it might be held that Confederation and the debates that contributed to it occurred within the context of an already existing constitution. Two features of the BNA Act are notable in this respect. First, the preamble states plainly that Canada has "a constitution similar in principle to that of the United Kingdom." Among other things, this means that many of the conventions that originate in British constitutional practice apply to this country as well. It could be seen to encompass the intangible elements of a common political culture, rooted in respect for the rule of law, limitations to the power of government, and the tolerance of opposing viewpoints within the framework of a stable representative government. These were not, of course, created by the Fathers but were inherited from English and later British practice.
To this extent, we Canadians can truthfully claim that our constitution in this larger sense is a very old one indeed, extending at least as far back as Magna Carta in 1215, with its principle that the king, as much as his subjects, is under the law. Furthermore, although the principle of parliamentary sovereignty, finally established in 1689 in the United Kingdom, has never been completely applicable within Canada's federal system, consisting as it does of 11 parliamentary bodies sharing sovereignty, the related principle of responsible government has had a secure place on this side of the Atlantic since the middle of the nineteenth century.
Second, even a cursory reading of the Constitution Act, 1867 itself indicates that it was never intended to be viewed as identical to Canada's constitution in the larger, older sense. Sections 9-11, for example, describe a polity consisting of a monarch exercising executive power who delegates her authority to a governor general who is in turn advised by a privy council. One looks in vain for reference to the most important actors in the political process, namely, the prime minister and cabinet, or to that all-important convention of responsible government. At most, the Constitution Act, 1867 is one source of our constitution, along with the similarly entrenched Constitution Act, 1982, a number of non-entrenched organic laws (e.g., the Supreme Court Act of 1875 and the Canadian Bill of Rights of 1960), and numerous unwritten conventions. In fact, if it were possible to quantify these components, it might be said that the unwritten conventions make up the bulk of our constitution.
When earlier this year the provincial government of Ernie Eves released the Ontario budget to the assembled press during a legislative recess, he was roundly criticized by many, including the speaker of the legislature, for having done something unconstitutional in bypassing the people's representatives. Eves might protest that what he had done was within the law, and a court would likely support him. But this reveals an overly narrow and legalistic understanding of our constitution. Similarly, when Canadians speak of Pierre Trudeau having given us a new constitution in 1982, they are forgetting that our constitution consists of much more than the entrenched constitution acts. Even with respect to the Constitution Act, 1867, all Trudeau's patriation did was to alter the legal basis of the old British North America Act, not to create something new, as Ajzenstat herself points out.
How is this relevant to the debate over Canada's founding? Is this merely a quibble over semantics? No, because it helps to cut the ground out from under Peter Russell's contention that Canada somehow lacks legitimacy because its founding was fatally flawed. If, by contrast, Canada's founders were not so much starting something new under the sun as simply adapting an existing and ancient constitution to a union of pre-existing bodies politic, then the argument against Canada's legitimacy falls flat. Canada is no less legitimate than the United Kingdom or any other country lacking a precisely dated founding experience.
To be sure, the union itself was new, but only in the sense that it was yet another stage in a deeply rooted constitutional history with origins on the other side of the Atlantic. As such, our founders could draw on the examples of the legislative union of 1707, which had created the United Kingdom while preserving the distinctive Scottish and English legal systems, as well as of the architects of the American federal system in 1787. In short, federal union was not altogether without precedent in a larger Anglo-Saxon constitutional history.
Now I suppose I might be construed to be arguing in favour of a more "tory" conception of Canada's constitution in contrast to Ajzenstat's classical liberal contractarian notion. I shall address the social contract in the next section. But one need not embrace the somewhat romanticized toryism of a George Grant or a John Farthing to recognize that the reduction of a constitution to an entrenched legal document is a fairly recent development that would have been unrecognizable to the Western political tradition prior to the eighteenth century.
Furthermore, this "textual" reduction has frequently exacerbated Canada's protracted constitutional crisis, insofar as it has focused (and ultimately wasted) so much effort on amending documents that have thus far proved excessively rigid and unamendable. This effort has come at the expense of more feasible attempts at effecting incremental political reform through ordinary parliamentary means. The recovery of a recognition that Canada's constitution is more than a written document could make for more effective and less contentious politics in the new century.
Does the principle of popular sovereignty constitute an adequate foundation for just government?
Ajzenstat goes to great lengths to demonstrate that the Fathers of Confederation were proponents of popular sovereignty and the consent of the people. The following passage is typical in this regard:
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.
There is, however, a tradition that sees popular sovereignty standing in considerable tension with the rule of law, which long antedates it as a principle of political practice. Moreover, if, as Jean Bodin and Thomas Hobbes would have it, sovereignty denotes the last word, final say, or ultimate authority, this alternative tradition finds it troubling to apply such an absolutist concept to the merely human, whether this be the political realm or the assembled people.
Jacques Maritain, writing from within the tradition of Roman Catholicism and Thomistic philosophy, believes that sovereignty is properly attributed to God alone. Any attribution of sovereignty to a human institution or collectivity is tantamount to investing it with godlike qualities. Hannah Arendt dislikes the concept of sovereignty because it necessarily entails cutting short the deliberative process characteristic of the genuine public realm. Even when attributed to the people, it implies a negation of what she calls the human condition of plurality and its substitution by a monistic popular will impatient with the inevitable frailties of political speech and action.
Following Arendt, Crick similarly argues that the assertion of sovereignty is suited only for emergency situations, and not for the ordinary process of conciliation that is politics. Sovereignty denies that our commitments as citizens are multiple. It pretends that our interests can be reduced to a single, a priori interest taking precedence over the multiplicity of legitimate particular interests. In other words, it is nothing short of anti-political.
The quest for popular sovereignty attains its most ideological form in the writings of Jean-Jacques Rousseau, who identifies it with the mysterious and elusive volonté générale, or general will. His Social Contract in particular identifies political right, or justice, with the sovereignty of the people expressed in this general will.
In Rousseau's brief but tightly packed treatise, he undertakes to set up something similar to Plato's "city in speech" in The Republic: like the latter, Rousseau's republic is established on a small scale, and it attempts to eliminate as far as possible all particular loyalties and commitments that might detract from allegiance to the whole body politic. Unlike Plato's theoretical enterprise, Rousseau's posits a sovereign body of the entire citizenry who alone are capable of legislating for the whole. To support the general will, a series of mechanisms are proposed, culminating in his notorious civil religion, a supremely "tolerant" faith that turns out to be profoundly intolerant of virtually any traditional religion such as Judaism and Christianity.
Now it would be grossly unfair to argue that our Fathers of Confederation were in any sense followers of Rousseau. From my own reading of the confederation debates, I see little or no evidence that the colonial political elites were proponents of Rousseau's particular version of popular sovereignty. Given that the latter has profoundly statist implications hostile to what is nowadays referred to as civil society, it would not have been an attractive alternative to the Fathers. Nevertheless, it is true that many political theorists who would otherwise affirm some sort of democratic governance would explicitly eschew the notion of sovereignty, with its unsavoury connotations, even when attached to the people. The American founders, for example, followed Montesquieu in undertaking at least to divide sovereignty, if not to repudiate it altogether.
What, then, if we soften popular sovereignty to mere consent of the people? What if we eliminate that troublesome word sovereignty and simply affirm that government is justified, as Ajzenstat puts it, "when grounded on the consent of the people"? This still presents a problem, particularly if we follow her in asserting that "in the absence of popular consent, there is no legitimate rule." This problem consists not in the affirmation that consent is in some fashion a prerequisite for just governance, which has been recognized at least as far back as the Greeks, and perhaps even in I Kings 12, where King Rehoboam unsuccessfully sought the support of the northern tribes of Israel for his rule. Rather, it consists in the assertion that consent is the ground, or origin, of legitimacy, with its implied reduction of the state to a mere voluntary association.
Here is where the rule of law enters the picture. The rule of law has exceedingly ancient roots, extending nearly as far back as recorded history allows us to see. One thinks, for example, of Hammurabi's Code in Babylonia, the Mosaic Law as recorded in the Torah, and the Code of Solon in the classical Athenian polis. All of these legal codes are rooted in an implicit and nearly universal understanding that legitimate political authority has an irreducible task of weighing divergent interests in accordance with the principles of justice. Legal codes represent an attempt at clarifying these principles and applying them to the peculiarities of a particular community rooted in its own mores and traditions. What is significant about all of these is that the members of the community—including those drafting and ratifying the laws, as well as those subject to them—understand them to be rooted in something transcending the mere will of a legislator or legislative body. Often, they are viewed as divinely ordained.
Did ordinary Babylonians, Israelites, and Athenians consent to these laws? Undoubtedly, they can be said to have done so in some fashion, even if they did not formally vote for their ratification. Yet the validity of these laws could not be said to rest on popular consent. Rather, their legitimacy is rooted in the irreducible jural task of government, that is, in the divine mandate of political authorities to do justice to the variety of individuals and communal formations within its territorial jurisdiction. This divine mandate applies as much to pre-seventeenth-century political entities as to more recent democratic polities. A recognition of the state's jural structure better accounts for what might be called a transhistorical political legitimacy than social contract theory, with its seeming implication that pre-democratic polities somehow lacked this legitimacy.
This said, however, I am happy to concede that Ajzenstat's understanding of popular sovereignty is sufficiently nuanced to bring her close to the jural vision of the state for which I have just argued. For her, popular sovereignty "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." If this is what she means by popular sovereignty, then I could hardly bring myself to disagree. Yet given the monistic connotations of sovereignty and the voluntaristic implications of social contract theory, it might be better to seek a different metaphor to express these undoubted political goods.
Is the Westminster form of parliamentary democracy the best means of peacefully reconciling diversity?
Where can be little doubt that Canada's democracy has worked well over the past century and a third, even considering our recurring constitutional controversies. The same can be said of other Commonwealth countries following the Westminster model, including Australia, New Zealand, a handful of Caribbean democracies, and Great Britain itself. Not only do these display an enviable political stability unmarked by the periodic turbulence and tyrannical episodes marring the landscape in so much of the rest of the world, but they enjoy a large measure of just governance commanding widespread public support. Even with our ongoing quarrels over separatism and federal/provincial responsibilities, we have much to be thankful for here in Canada.
Canada's Westminster-style democracy has not, however, served it well in every respect. The very year that saw the passage of the BNA Act saw the publication of Walter Bagehot's classic and oft-quoted The English Constitution. In it he argues that the genius of England's constitution is, among other things, that it is based on a fusion of legislative and executive powers in the hands of the prime minister and cabinet. On the one hand, this executive dominance over parliament gives both Britain and Canada a certain stability at the centres of political power as compared to the instability of assembly regimes, such as Weimar Germany (1918-1933), fourth republic France (1946-1958), and post-war Italy (1948-1992). Canada's constitution places a premium on a government's ability to get things done expeditiously, free from the continual threats of non-confidence votes that plague the fragile governments of assembly regimes.
On the other hand, if Canada's executive-dominated system preserves stability in the short term, it may facilitate instability over the long term. This is because it encourages a sitting government with a legislative majority to rely too heavily on party discipline to push through its legislative agenda, thereby curtailing a full measure of the deliberation so crucial to the ongoing political enterprise. Although our system has an important role for the opposition parties to play in exposing a government's agenda to public scrutiny, it is not necessary for the government to seek the input of these parties in the process of formulating this agenda. Given that the governing party can generally claim to represent only between 38 and 43 per cent of the electorate, this effectively excludes between 57 and 62 per cent from the policy-making process.
In his 1984 book Democracies, the Dutch-American political scientist Arend Lijphart contrasts two varieties of democracies prevalent in the Western world: the Westminster and consensus models. His Westminster model is based on majoritarian assumptions and consists of the following nine principles: (1) a concentration of executive power in one-party and bare-majority cabinets; (2) a fusion of power and cabinet dominance; (3) asymmetrical bicameralism or unicameralism, i.e., a parliamentary body in which power is concentrated in a single popularly-elected chamber; (4) a two-party system; (5) a one-dimensional party system, usually revolving around socio-economic cleavages; (6) a first-past-the-post electoral system; (7) unitary and centralized government; (8) an unwritten constitution and parliamentary sovereignty; and (9) a representative democracy exclusive of direct-democratic mechanisms, such as the referendum.
Not surprisingly, the United Kingdom is the archetypical example of the majoritarian Westminster system, at least prior to the Tony Blair government's efforts at devolution in the late 1990s. Polities patterned on the Westminster model place a heavy emphasis on efficiency and getting things done. Single-party governments, coupled with strong internal discipline, enable a head of government to pursue policies unconstrained by possible obstructions from either his or her own caucus or the opposition. An underlying assumption of the Westminster system is that the body politic as a whole is sufficiently homogeneous to render parliamentary debates merely intramural discussions between (preferably) only two partisan groupings vying for support of the same broad constituency.
Lijphart's consensus model, which grows out of his earlier conception of consociational democracy, is characterized by eight principles: (1) executive power-sharing and grand coalitions; (2) formal and informal separation of powers; (3) balanced bicameralism and minority representation; (4) a multiparty system; (5) a multidimensional party system; (6) proportional representation; (7) territorial and non-territorial federalism and decentralization; and (8) a written constitution and minority veto. Examples of the consensus model can be found in Belgium, Switzerland, the Netherlands, the failed 1960 constitution in Cyprus, and the National Pact regime in Lebanon from 1943 to 1975. (The Cyprus constitution failed because it was imposed from outside and had little legitimacy with the majority Greek-speaking citizenry. The National Pact broke down because it was not flexible enough to accommodate demographic change.)
If politics, in Crick's words again, is about peacefully conciliating diversity, then the consensus model accomplishes this more adequately than the majoritarian model because it places a premium on the process of on-going deliberation, undertaking to ensure that as many viewpoints as possible are represented at the centres of decision-making and that minority opinions are accounted for. The process will not, of course, be a particularly speedy one. Yet once a decision is made, more elements in the body politic are likely to take ownership of it and thus believe that the resultant policy, while not perfect, nevertheless takes their interests into account and is therefore just. The consensus model is particularly well suited to a polity more or less permanently fragmented along regional, ethnic, linguistic, religious, or ideological lines.
Although Canada contains elements of both majoritarian and consensus models, it is clearly closer to the former than to the latter. Canada is rather evidently characterized by single-party and bare majority cabinets, a fusion of legislative and executive powers, asymmetrical bicameralism, a first-past-the-post electoral system, and exclusively representative democracy. As for an unwritten constitution and parliamentary sovereignty, Canada has appropriated this in only partial form, beginning with confederation in 1867, primarily because the new dominion was established as a federal system requiring a detailed documentation of the division of powers between the two levels of government.
Lijphart's unwritten constitution is problematic for the development of a consensus model, only if there is a complete absence of a constitutional document and even then only if traditions of power-sharing across social cleavages are altogether lacking from the polity. Since, as I have come to believe, all states can be said to have unwritten constitutions, there is nothing peculiarly majoritarian about its mere existence. In fact, in the Netherlands, traditions of power-sharing developed informally during the latter part of the nineteenth and the first decades of the twentieth centuries. Even the distribution of Lebanon's political offices among the country's major religious communities was merely conventional and based on an agreement, known as the National Pact, reached in 1943 at the time of the country's independence.
Thus it is not so much the unwritten nature of a constitution that is decisive in isolating the system's majoritarian character; it is, rather, the centralized rule of a single parliament whose legislative power is not shared with other regional and local parliaments. A federal system is compatible with entrenched constitutional documents, ordinary statutes detailing the federal division of powers, or even unwritten convention.
Because of the Westminster model's majoritarian character, Canada's democracy has not always succeeded in addressing the very centrifugal tendencies that could lead to its breakup over the long term. Trudeau's National Energy Program is generally conceded to have been a disaster for the Western provinces, which were virtually unrepresented in his Liberal majority government in 1980.
Had Canada had an effective upper chamber somewhat over-representing the West and Atlantic Canada, it is unlikely that the prime minister could have used his majority support in central Canada to impose a policy so obviously detrimental to such a large swath of the country. Moreover, if the province of Quebec had a more proportional electoral system in 1976, the Parti Quebecois would not have been able to form a single-party majority government, and much of the momentum behind separatism might have been weakened. Finally, a less majoritarian constitution in Ontario would have diminished the wild swings between the statist New Democratic and privatizing Progressive Conservative policies in the 1990s.
This is by no means to belittle Canada's constitution. We do have a good constitution, as Ajzenstat correctly observes. However, given the sheer size and diversity of this country, we could stand to adopt reforms that would better embody Lijphart's consensus model and thereby attenuate the majoritarian features of our political system. Given that our entrenched constitution acts are practically unamendable and given that constitution-making, in Ajzenstat's words, "is always contestable, always confrontational, always immoderate," our political leaders would do well to concentrate their reforming efforts on the non-entrenched statutes and unwritten conventions standing at the centre of our democratic political system. In this way, we could manage to make a good constitution even better.
- Janet Ajzenstat, et al., ed., Canada's Founding Debates: A Conversation with the Founders (Toronto: Stoddart, 1999).
- Janet Ajzenstat, "The Conservatism of the Canadian Founders." In After Liberalism: Essays in Search of Freedom, Virtue, and Order, edited by William D. Gairdner (Toronto: Stoddart, 1998, 17-32).
- Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958).
- Hannah Arendt, On Revolution (New York: The Viking Press, 1963)
- Walter Bagehot, The English Constitution (1867).
- Jean Bodin, Six Livres de la République (1576).
- Bernard Crick, In Defence of Politics (London: Weidenfeld & Nicolson, 1992).
- Robert MacGregor Dawson, Dawson's The Government of Canada, revised by Norman Ward, 6th ed. (Toronto: University of Toronto Press, 1987).
- John Farthing, Freedom Wears a Crown (Toronto: Kingswood House, 1957).
- George Grant, Lament for a Nation: The Defeat of Canadian Nationalism (Toronto: House of Anansi Press, 1965).
- Thomas Hobbes, Leviathan (1651).
- David T. Koyzis, "Why Political Divorce Must Be Averted," in Crosscurrents: Contemporary Political Issues, edited by Mark Charlton and Paul Barker, 3rd ed. (Toronto: ITP Nelson, 1998, 211-217).
- Arend Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands, revised 2nd ed. (Berkeley: University of California Press, 1975).
- Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries (New Haven, CT: Yale University Press, 1984).
- Jacques Maritain, Man and the State (Chicago: University of Chicago Press, 1951).
- Paul Marshall, "Anglo-Canadian Perspectives on the United States Constitution," in Liberty and Law: Reflections on the Constitution in American Life and Thought, edited by Ronald A. Wells and Thomas A. Askew (Grand Rapids, MI: Eerdmans, 1987, 65-86).
- Baron Charles de Montesquieu, Ésprit des Lois (1748).
- Jean-Jacques Rousseau, On the Social Contract (1762).
- Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?, 2nd ed. (Toronto: University of Toronto Press, 1993).