The parliamentary Locke and the Canadian founding

Is there something to be said for a constitution infused with political values that creates a way of living together, especially with deep differences over social values? Is the better state one that embodies these political values, that seeks human flourishing, first, by recognizing its limits, and refuses to extend its jurisdiction to the salvation of souls?
April 18 th 2008
Objection had been taken to the scheme now under consideration because of the words "new nationality." Now, when we were united together, if union were attained, we would form a political nationality with which neither the national origin, nor the religion of any individual, would interfere. It was lamented by some that we had this diversity of races, and hopes were expressed that this distinctive feature would cease.

—George-Étienne Cartier,
Confederation Debates

REVIEW ESSAY: Janet Ajzenstat, The Canadian Founding: John Locke and Parliament. Montreal: McGill-Queen's University Press, 2007. 199 pages. Canada/US: $29.95 (Paper) / $75.00 (Cloth).

Snow Angels

The historical Locke

One of the founders of Modern political theory, he was an anti-creedal, anti-high church, anti-divine right-of-kings, anti-hierarchical, anti-absolutist, pro-Parliament Christian in the Puritan Reformed mold. But John Locke's career unfolded some 150 years after the Reformation began, some 130 years after King Henry VIII and the Church of England were excommunicated from Rome, 100 years after the tumultuous reigns of Edward VI and Mary I, and after Elizabeth I's churchly compromise of Reformed doctrine and high-church liturgy. Locke lived through the civil war over the Stuart kings' attempts to establish absolutism and Parliament's response, led by Oliver Cromwell, through the trial and execution of Charles I, and under the English republic. He survived the Restoration of the monarchy under Charles II and James II, partly in exile. Locke's Letter on Toleration and his Treatises were published shortly after his return to Britain as "the Glorious Revolution" deposed James II and formalized and strengthened the parliamentary principle in the Bill of Rights (1688/89).

"The parliamentary Locke"

It is "the 'parliamentary' Locke" that the Hamilton, Ontario, political philosopher Janet Ajzenstat credits as the key to understanding the Canadian founders and the Canadian federation's founding document and constitution, the British North America Act, 1867 (BNA Act). Ajzenstat counters generations of Canada's constitutional historiographers and other interpreters of Canada's constitutional tradition who sought to cast Canada as in many respects opposite to the United States. Some Canadians point to the BNA Act's "peace, order and good Government" versus the Declaration of Independence's "life, liberty, and the pursuit of happiness." Others highlight alleged Canadian deference to elites versus the American celebration of popular sovereignty. Still others contrast the centralized understanding of federalism of the Laurentian thesis and of Pierre Trudeau versus "states rights" and Ronald Reagan's decentralized understanding of the U.S. federation. But from the outset, Ajzenstat argues—insists—that the Canadian founders took popular sovereignty as constitutional bedrock (see chapter 2). (She includes as founders those who wrote the Quebec Resolutions and those in the legislatures who debated and ratified them prior to their being presented as a draft bill to White Hall and Westminster for passage into law as the BNA Act). The founders' understanding of popular sovereignty was shaped by their experience of the parliamentary tradition of "responsible" (representative) government in the colonial, legislative assemblies of Nova Scotia, New Brunswick, Prince Edward Island, and "the Province of Canada"—today, Ontario and Quebec. They were influenced by others, including William Blackstone's Commentaries (1765-1769) and by John Stuart Mill's only recently published Representative Government (1861). But the founders saw in John Locke the great philosopher of this parliamentary tradition.

It was from their knowledge of Locke that the Canadian founders and their immediate precursors clarified the parliamentary principle in their formulation of it as "responsible government." Without explicitly referencing Aristotle's Politics, Ajzenstat highlights the pre-Confederation (pre-1867) parliamentarians' insistence on a form of government that was a hybridization of the "monarchic," the "aristocratic," and the "democratic" principles—the classical Aristotelian argument about what form of government constitutes the best form of government. After the British came to terms with the Thirteen Colonies to end the War of Independence in 1783, many United Empire Loyalists found themselves in a jurisdiction governed by a non-representative government framed by the Quebec Act, 1774. Westminster passed the Canada Act, 1791, that instituted representative government in Upper and Lower Canada (now, Ontario and Quebec). This was the same form of government that the Thirteen Colonies had sought to recover—that Nova Scotia had enjoyed since 1758. The period from 1791 through the 1837 rebellions in Upper and Lower Canada culminating in Lord Durham's Report (1839) was a period of struggle between the intent of 1791 and the reality. The intent was representative government. The reality was elected colonial legislatures dominated by the unelected elites of Upper and Lower Canada. In the periodical Le Canadien, from 1806 till his arrest in 1810, the Lower Canadian parliamentarian and brilliant theorist Pierre Bédard insisted that the best form of government was one that incorporated the monarchic, the aristocratic, and the democratic principles. These were embodied in an executive that administrated and ran the machinery of government, an upper house populated by the most accomplished of society, and a lower house in which sat the people's representatives democratically elected. Bédard also argued for a separation of powers between the three. He upheld the power of the executive to "recommend" spending (money bills), the expectation that money bills would be introduced and ratified (or not) in the lower house, the prerogative of the upper house to exercise a legislative veto on money bills, and the "responsibility" of government ministers to be answerable—accountable—to the lower house on an ongoing basis. This form of government Bédard called "responsible government."

"Political values" versus "social values"

It is in "the parliamentary Locke" of Bédard and the Canadian founders that Ajzenstat finds a corrective to a more recent tendency in constitutional interpretation and constitution-making. Adopting Charles Taylor's delineation of "political values" from "social values," Ajzenstat argues that the Canadian founders limited their constitution-making to the institutionalization—the constitutionalization—of the political values of "equality, nondiscrimination, the rule of law, and the mores of representative government." The consensus the founders sought was a political consensus. There was no consensus present nor sought on "social values": "The Fathers concluded that the attempt to write social values into the Constitution would offend some individuals, groups, and regions. It would breach the non-discrimination principle." According to Ajzenstat, the founders resisted entrenching in a constitution "social values" that they considered more properly reserved to ongoing legislative debate:

To repeat: in a free society there are differences of opinion. The Fathers believed that issues like these—big government versus small government, public safety versus the rights of the accused—were matters for deliberation in the public arena and the Legislature. To define the country in terms of social values would bias debates and call into question the inclusiveness of our national institution.

We have lost the Fathers' insight
(xii).

Identity

On the question of identity, Ajzenstat points to George-Étienne Cartier who famously insisted that he and the other founders were seeking to formalize "a political nationality" in Canada founded on the parliamentary tradition. For Ajzenstat, the founders considered social values the province of political parties, to be debated and deliberated over according to constitutionally embedded political values expressed in the institutions of Parliament. A common, Canadian identity was limited to "the civic identity" (77) represented in the political values constitutionally embedded and institutionally embodied. Ajzenstat cites Alexander Mackenzie, a future Canadian prime minister, in answer to Peter Russell's contention that "the Fathers" were insufficiently representative of various identity groups. Mackenzie argued that what is most important is to frame a government that accounts for a plurality of views:

Does this omission of perspectives seriously detract from the legitimacy of the British North America Act of 1867? In the Canadian legislature, Alexander Mackenzie framed the issue in this fashion: The "question is not, at the present moment, what is the best possible form of government, according to our particular opinions, but what is the best that can be framed for a community holding different views" (70).

Reading through the BNA Act, we can find that the plurality of other identities—religious and otherwise—was acknowledged and provided for. Section 93 of the BNA Act provides for denominational schools. Section 92 allows for different civil law in respect of family, inheritance law, et al., province to province, inside the Canadian federal union (cf. 94ff). But Ajzenstat argues that the common identity framed by the BNA Act was purposely civic, not cultural (84), and that this is as it should be.

Recovering civic confidence and political cohesiveness

In chapter 10, Ajzenstat points to the Canadian founders' insight as a way of recovering cohesiveness in the Canadian union—to diminish the social values polarization found in the contemporary, Canadian polity. She notes the decline of legislatures in favour of the special interest group and the decline of citizen confidence in the ability of Parliament to represent "me." She points to the Canadian preoccupation with " 'megaconstitutional' reform," the shift of policy-making to courts and constitutional interpretation, and the recourse to international tribunals to mediate Canadian, domestic policy disputes.

By shifting policy-making to the courts, those on the avant-garde of policy have circumvented crossing the electoral thresholds necessary for winning votes in the legislatures. Those in the legislatures have side-stepped deliberation and recorded votes on difficult policy questions that tend to polarize the electorate—that could endanger their re-election prospects. As with the would-be megaconstitutional reformers, the courts, too, persist in ignoring constitutional tradition, including the extensive debates of the founders of the constitution they are re-making. And when megaconstitutional reform or judicial policy-making won't achieve desired outcomes, there is always recourse to an international venue—the United Nations—or an international tribunal that may hand down an edict calling on Parliament or the Canadian courts to make the desired policy change.

Ajzenstat suggests that in the rush to engage in wide-ranging constitutional reform, the would-be founders of a new Canadian union failed to consult the debates of the founders of 1867. In her urging a reading of the founders' debates, Ajzenstat doesn't present herself as a thorough-going proponent of authorial intentionality or constitutional originalism. Before drawing conclusions about either the intent of the founders or what political philosophy informed the making of the BNA Act, Ajzenstat asks that we consult the founders' debate over points of political philosophy and constitutional tradition. Far from delivering a doctrinaire demand, she simply makes what seems a reasonable request.

A solution?

Is Janet Ajzenstat correct? Is the solution to what ails Canadian democracy found in "the parliamentary Locke?" Is it found in a recovery of the Canadian founders' delineation of political values from social values, and their more modest understanding of what a Parliament is for?

First, I raise some quibbles of fact on megaconstitutional reform from the historical record. In the round of negotiations leading to the Constitution Act, 1982, including the Canadian Charter of Rights and Freedoms, which expanded the right or responsibility of the Canadian courts to engage in judicial review, at least two of the premiers raised serious concerns about the implications of this departure from Canadian constitutional tradition.

I know from conversations with Greg Yost, constitutional adviser to Premier Sterling Lyon (1977-1981), that the Manitoba premier was both knowledgeable of the founders' debates and concerned about the implications of Prime Minister Trudeau's proposal for constitutional reform. Premier Lyon made public a number of his concerns at the time. Peter Lougheed, Premier of Alberta (1971-1985), also raised concerns, not unlike Premier Lyon's. For similar reasons, Lougheed, Lyon, and other premiers insisted on the inclusion of Section 33 in the Charter. Section 33 ("the notwithstanding clause") allows any provincial legislature to opt out of court rulings handed down under judicial review based on Section 2 and Sections 7 through 15 of the Charter.

René Lévesque, Premier of Quebec (1976-1985), was even more concerned about any departure from the BNA Act which then clearly limited the centralizing power of the federal government and the courts. While a separatist, Premier Lévesque was also a proponent of the 1867 compromise, as long as Quebec was party to the Canadian union. Lévesque considered the compromise hammered out by the other premiers on megaconstitutional reform, without his prior knowledge, a betrayal of Quebec and of the constitutional compromise represented in the BNA Act.

The court had ruled that Prime Minister Trudeau and the federal Parliament could unilaterally move ahead with bringing the BNA Act "home" from Britain, although its ruling suggested Mr. Trudeau should consult the provinces. The provincial premiers feared that if they did not propose the compromise worked out by Roy Romanow, then Saskatchewan's Attorney-General, and Roy McMurtry, then Ontario's Attorney-General, between the federal and provincial governments' positions, that the prime minister would go ahead unilaterally. While the prime minister's proposal for constitutional reform was a sharp departure from parliamentary tradition, the premiers' compromise was an effort to hold on to as much parliamentary tradition as they could under the political circumstances. Then, as now, Canadian public opinion overwhelmingly favoured Prime Minister Trudeau's brilliant political gambit that played on Canadian patriotism and aspirations to take amendments to the Canadian constitution out of the hands of the British Parliament.

Securing rights

Opinion also overwhelmingly favoured the Charter. Then, as now, Canadians seemed ignorant of the long Parliamentary and constitutional tradition that guaranteed their rights, long before the Charter was a gleam in Mr. Trudeau's eyes. In sharp contrast, Ajzenstat insists in chapter 3 that the founders operated according to the common law understanding that "rights require remedies." Contrary to the contention by "the Laurentians" that the BNA Act was designed to secure collectivities, or by human rights theorists that rights were left out of the BNA Act, Ajzenstat argues that the founders self-consciously sought to create a constitution in which rights were secured by Parliament.

Megaconstitutional reform, judicial review, and civic confidence

If it wasn't clear in 1981 that megaconstitutional reform or making policy by judicial review was problematic, it surely is, now. Instead of increasing confidence in Canadian political institutions and the Canadian union, the megaconstitutional reform of 1981 and the aborted attempts at the same in 1987 and 1991 served to undermine Canadians' confidence in their political institutions. Prime Minister Chrétien (1993-2003) made much of his refusing to engage in anything with a whiff of constitutional reform. His electoral success can, in part, be attributed to it. But even while he refused to engage in overt constitutional reform, he introduced constitutional amendments striking down the provisions for denominational schools in Newfoundland (1997/98) and Quebec (1997). Mr. Chrétien's successor, Prime Minister Martin (2003-2006), insisted that judicial rulings on the definition of marriage required his bringing forward legislation to open up the common law definition of marriage to include "same-sex unions." As Ajzenstat suggests, Canada's signing on with a number of United Nations conventions and international tribunals holds the potential to dictate to Parliament, the Canadian courts, and the Canadian public in respect of domestic, social policy concerns.

Ajzenstat and Rawls

Ajzenstat's diagnosis accords with the intent of the most influential English-speaking political philosopher of the last generation, the late John Rawls. In his Political Liberalism (1993/1996), Rawls argued in favour of constitution-making that is not content with the old modus vivendi of constitution-making in the Lockean tradition. For Rawls, the modus vivendi understanding of constitutions is insufficiently "thick" in its failure to prescribe social values. Much of Political Liberalism takes up how constitution-making can prescribe and embed a thicker (liberal) social vision and still allow for the "deep pluralism" of "comprehensive doctrines." The parameters of this review essay do not permit exploring, here, all the subtleties and implications of Rawls's arguments in Political Liberalism and elsewhere. But suffice it to say that over time, right up to his decease, Rawls came to adopt an understanding of liberalism that was, in general, increasingly "wide" in order to allow for deep pluralism. Symptomatic of the relationship between deep pluralism and embedding thicker (liberal) social values in constitutional discourse is that public opinion and political debate in Canada and the United States is increasingly polarized over questions of social values. In the United States, elections analysis calls attention to "Red States" v "Blue States." In Canada, it's "urban" v "rural." "Red State" and "rural" are synonyms for "socially conservative." "Blue State" and "urban" are synonyms for "socially liberal."

The more that Rawlsian liberals have sought to embed their social values—what Rawls insists is "political liberalism"—the more polarized public discourse has become. Those holding to "comprehensive doctrines" other than Rawlsian liberalism feel more and more marginalized. What Rawls dismisses as modus vivendi and what Ajzenstat calls "the parliamentary Locke" of the Canadian founders—a constitution of the embedded political values of equality, non-discrimination, the rule of law, and the mores of representative government—appears more and more tenable. That is, a constitution that does not embed social values and limits itself to these political values will better cope with deep pluralism over social values.

Something more profound

As Ajzenstat suggests, "equality, non-discrimination, the rule of law, and the mores of representative government" are more than mere modus vivendi. They are political values. Against the language of values, others might argue they constitute hard-won political principles. I'll go a step further.

These political "values" or "principles" are indicative of something even more profound. "Equality" springs from an understanding of the unity of humankind that affirms the "equal," inestimable worth of every human person, irrespective of sex, race, ethnicity, wealth, age, intellectual capacity, or social standing. "Non-discrimination" arises from an understanding of a human obligation to treat others with impartiality, again, irrespective of sex, race, ethnicity, wealth, age, intellectual capacity, or social standing. "The rule of law" comes from the view that no human person or institution—not even the state—is without fault—that the law is designed to guide and to correct everyone. And, "the mores of representative government" emerge from an understanding of humankind as collectively responsible for our world—no one person, group, or party holds an exclusive franchise on knowing what is best for our world, including human society.

A Lockean manifesto

This understanding of government—constitutional government—holds that government itself must needs be limited. The jurisdiction and responsibility of government does not extend to every domain—not, as some public policy programs might dare to claim, to the salvation of humankind:

Now that the whole jurisdiction of the magistrate reaches only to these civil concernments, and that all civil power, right and dominion, is bounded and confined to the only care of promoting these things; and that it neither can nor ought in any manner to be extended to the salvation of souls, these following considerations seem unto me abundantly to demonstrate.
—John Locke, Letter on Toleration (1689)

Is what Rawls calls the modus vivendi constitution such a bad thing? Is there something to be said for a constitution infused with political values that creates a way of living together, especially with deep differences over social values? Is the better state one that embodies these political values, that seeks human flourishing, first, by recognizing its limits, and refuses to extend its jurisdiction to the salvation of souls?

Janet Ajzenstat calls on the courts, elected officials, and Canadians to read the founders' debates and to understand "the parliamentary Locke" that informed their deliberations. She asks us to give up embedding "social values" in the constitution by megaconstitutional reform, by court rulings, or by appeals to international tribunals. Instead, she asks that the constitution be the domain not of "social values," but of the "political values" of equality, non-discrimination, the rule of law, and the mores of representative government. She calls on elected officials, interest groups, and the Canadian public to debate social values and to recover Parliament as the main theatre of deliberation and decision-making about social values. Finally, Ajzenstat calls on all Canadians, irrespective of our other identities, to reclaim what Cartier called "a new nationality": the civic identity extended to all Canadians, held in common, and defined by the great political values embedded and embodied in Parliament.

 

Russ Kuykendall is a former director of policy to a past Canadian Minister of Natural Resources and a former research fellow with Cardus.

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