What difference does a constitution make to a country? At the most obvious level, constitutions describe the institutions of government, their relationships to each other, and some safeguards to ensure that their operation is consistent with individual liberties. Constitutional debates, however, have a tendency to deal with large questions of what a country stands for, and what its future holds, in a way that ordinary political debates do not. Those who argue for a certain wording in constitutional texts know that these texts can be nullified by societies going their own way; they fear that a text they dislike will actually change people's thinking for the worse; and they hope the text they favour will change things for the better.
This collection edited by Anthony Peacock offers articles by authors who take constitutional wording seriously, but do not simply repeat arguments that have become familiar. Of the fourteen contributors, six are lawyers or ex-lawyers, and nine (including some ex-lawyers) teach political science in universities. Although few articles discuss court decisions or political manifestos in great detail, the authors try to say where Canada has been heading. They seem to share a belief that a constitution provides at least a fair description of the principal goals shared by the citizens of a country, and thus a vision of the common good. Generally speaking, they are uneasy at what Canada has become. Most of them represent strands of what could be called conservative opinion, and in different ways they raise the question whether a Tory Canada is possible or desirable.
Peacock has contributed an introduction written before the Quebec referendum of 1995, and a postscript written after it. He is one of a group of contributors who argue that recent approaches to the constitution have assumed the impossibility of achieving a truly common good. They have thus made any agreement on issues of substance unlikely. The prevailing view, according to Peacock, is "that a constitution is a compromise between competing, if not incompatible interests; that it should not look or cannot look beyond those interests to what might be good in a liberal democracy."
In discussions of the Charlottetown Accord, for example, everyone was assumed to have an interest, and thus a bias, rooted in pre-rational attributes including biological, racial, sexual, or cultural characteristics. Since no-one shared the biases of anyone outside his or her own group, no-one could speak for other groups. Supposedly this was a problem that could be solved by giving equal representation to all the groups deemed to be most relevant, especially the "previously disadvantaged". One can never reach agreement on the results of such a process, however, unless the agreement itself is seen as a function of reason, transcending such qualities as race, and not as mere self-assertion.
The prevalent "interest-group" thinking undermines support for any constitutional reform, since it suggests that there can only be winners and losers, instead of fellow-citizens sharing a vision of the common good. "No longer a series of neutral rules for the resolution and management of political disputes, the constitution has become, in many important respects, a forum for the implementation of partisan programs." The 1982 Charter of Rights & Freedoms has been celebrated with the hope that the constitution could transcend partisan controversy, and that courts could make decisions that would be more lasting and respected than merely political acts. Instead the constitution is now widely seen as an extension of partisan controversy, with considerable power wielded by a very few people.
In his postscript Peacock shows some sympathy for Quebec nationalism, but worries that it is now an example of group politics, and thus a threat to liberal constitutionalism. Peacock seems to think that English Canadian nationalism as it existed until recently was inseparable from liberal constitutionalism, whereas Quebec nationalism is hard to distinguish from "bald ethnic nationalism". On the other hand, Peacock suggests that the separation of Quebec or a similar constitutional crisis might be desirable insofar as it might "force a clarity in Canadian political thought that has yet to be seen and that is, arguably, long overdue." Such a crisis, he seems to think, will make us more like the U.S., where there is a tradition of taking constitutional debate seriously.
Christopher Manfredi adds to Peacock's argument in an article called "Why Canadians were Right to Reject the Charlottetown Accord". He argues that the constitution should enshrine "universal citizenship" with, presumably, no special status for any group. He thus believes that "we should abandon the anachronistic notion that Canada was, is, and must remain a compact between founding nations or cultures (now numbering three [counting aboriginals] instead of the traditional two)." It may be true that a reference to Quebec as a distinct society cannot now be added to the constitution without making concessions to many other groups. The rights of aboriginal peoples are a particularly vexing problem. I wonder, however, if Quebec's claims, especially in connection with legislating about language (the only issue, I believe, on which Quebeckers are accused of being something other than liberal democrats), do not have a special place.
Bradley Watson reminds us of the classic argument of Alexander Hamilton against any constitutional bill of rights. There is a tendency to think the listed rights are the only ones that deserve constitutional protection, and that they extend only as far as a court says they do. Without a bill of rights, the people can be assumed to be free unless and until a specific restriction is justified in a specific case. With or without a constitutional text in place, rights must be limited and interpreted. No bill of rights performs this function on its own, so the effect of having such a written constitutional provision is primarily to give power to the courts. As Manfredi also suggests, the institutions of republican (in our case, parliamentary and federal) government themselves are meant to protect rights. If they fail to do so, it is unlikely that a written bill of rights will be of great help. Watson does not mention it, but a much-cited example is that of people of Japanese ancestry in World War II; those in the U.S. were treated unjustly in much the same way as those in Canada, although the U.S. had its Bill of Rights and Canada had nothing similar.
So far it might seem that this collection looks back fondly or longingly to a time when liberal constitutionalism, following a British parliamentary model combined with federalism, was firmly in place in Canada. The constitution was generally in the hands of those who both understood and defended it, philistines were kept at bay-indeed, interlopers of the kind that now trouble us may not have existed-and there was no need for a constitutional bill of rights. Peacock says a bit wistfully, "For over one hundred years, the British North America Act and constitutional conventions served as a political compass for Canadian politics. It is difficult to discern what, if anything, has filled the void left by the recent period of constitutional disruption and change that has so affected our social and political life."
There is even a piece here in which Robert Martin laments the loss of references to Canada as "British North America". He says the old language referred to a "unifying national idea", consistent with providing a home for both French Canadians and new Canadians, as well as "old" English Canadians. The loss of the old language is evidence, and not the cause, of the loss of the idea. At the least, Martin's article provides a context for the arcane debate about a return to "Dominion Day", and a contribution to the debate about the monarchy.
Karen Selick takes a very different view. She is obviously convinced that a constitutional bill of rights is a good thing, and that its wording is important, and she is therefore doubtful that Canada has ever protected rights as it should. She offers what I would call a libertarian approach to the Charter and its interpretation, in which the "negative" right to pursue food for oneself is to be protected, whereas the "positive" right to be fed by others "is really not deserving of the name `right' at all."
(A "negative" right is a freedom from something, or from being stopped from doing something. A "positive" right is a right to actually get something.)
She has some very specific concerns about the Charter. First, some phrases lend themselves to a "positive rights" interpretation. Multiculturalism in section 27 and equalization in section 36, for example, are "the excuses for innumerable programs that involve violating the negative rights of some Canadians in order to guarantee positive rights to others." Affirmative action is explicitly authorized by two subsections of the Charter. Selick is very concerned that it makes no mention of property rights, and she is not afraid to say that "the existing environmental and family law legislation violates property rights." Similarly, there is not enough protection for personal liberty, according to her. She recommends amendments to the Charter along the lines she has suggested, and then admits that from her point of view, though the U.S. has a much better constitutional document, things there are about as bad as they are in Canada.
Selick raises many tough and important questions as to whether we are too quick to violate individual rights. Like other libertarians, however, she conveys no sense of how a society can ever ask for real sacrifice from its citizens, ranging from economic sacrifice to service in war. She seems to assume that we can enjoy all the benefits of a lawful society (as long as we are strong or successful enough to enjoy "negative rights") without paying much of a price.
Rainer Knopff and F. L. Morton concentrate on what they call "the Court Party": those who welcome the new power of the courts to shape policy, and agree with most at least of the policies that have resulted. The most original part of the analysis in this article concerns the social engineers and the post-materialists. These might be two names for the same group or class; the latter term gives a better indication of the radicalness of their thinking. Social engineers believe that society's ills are caused by "the system", and can be lessened or even eliminated by making changes to political and other institutions. Post-materialists are members of the "knowledge class", primarily concerned with a "progressive" approach to social issues. They wish, for example, to replace the old collusion between politics and business-and even a newer arrangement in which labour has a voice-with an emphasis on applying the latest knowledge and technology: thus, environmentalism.
Knopff and Morton stress that social engineers and post-materialists are not democrats. At best, for these progressives, democracy is something for the future, when the many are enlightened. At worst, post-materialists believe that every group acts for its own power; such a view makes it unlikely that the knowledge class will ever gladly share power with anyone. The elitism of the progressives causes them to pin their hopes on the courts, and Knopff and Morton devote several pages to distinguishing the Court Party's approach from traditional judicial review.
Adherents of judicial review have always been anti-majoritarian. Traditionally, this meant trying to limit the scope of government action, in order to protect the social realm of private freedom as something prior to any government, and deserving to be preserved as much as possible. When judicial review is influenced by the newer thinking, however, it is generally in favour of government action, and suspicious of private freedom. Of course, certain aspects of personal freedom are loudly proclaimed, especially in the realm of sexual freedom and the so-called "right to die". On the whole, however, private freedom is simply the residue that is left when various governments have achieved social goals including equality, peace, a clean environment, and a progressive education for children.
Part III, "Constitutional Theory", is naturally the most explicitly theoretical part of this collection, but there are articles elsewhere in the collection that raise issues of political theory. Knopff and Morton, as we have seen, suggest that some help is to be found in returning to early liberal thought. In particular, they recommend a state of nature teaching which suggests that we would willingly give up only those liberties which must be sacrificed in order to achieve peace and order. Watson, on the other hand, suggests it is precisely early liberal thought that is the problem, and he worries that "self-expressive liberalism" is "endemic to Canada as it is to the United States." Barry Cooper begins from the "(surely uncontested) fact that Canadians have, to date, proved themselves incapable of establishing a constitutional regime embodying a reasonable degree of coherence."
Cooper argues that we have "no common myths, no widespread agreement to sustain a common `vision' of the nation or even of citizenship." For this reason the most ambitious efforts at a new constitutional settlement have failed: what is demanded by one group of Canadians is ruled out by another, and we are forced to achieve "political deals that frankly recognize low but solid interests and ignore high but mendacious ideals." More ominously, "if a government tries to be representative in nothing but the legal-constitutional sense, a representative ruler in the existential sense will sooner or later make short work of it." Our very real regional and personal loyalties threaten our rather dubious national institutions.
Tom Darby and Peter Emberley make a similar argument about the limits of constitutionalism when it is not connected to some underlying reality. They argue that "formal amendments to the constitution.cannot change the way Canadians think. In particular, they cannot change what Canadians believe about such things as justice and fairness and what is a good social order." These authors do not simply attempt to dispel naivety, however; they blame "political correctness" for the refusal of some people to accept any truth from nature, or limits that are found within nature. The beginning of wisdom, they claim, is an at least provisional acceptance of the old distinction between nature and convention. Political correctness, they claim, raises foolish expectations, silences helpful discussion, and causes real problems to be ignored.
To repeat: this collection, for the most part, provides a sampling of different strands of what can loosely be called conservative thought on the constitution. One article stands out in contrast. H. D. Forbes defends, or provides a basis for defending, Trudeau's multiculturalism policy, as expressed in the Charter among other places. Forbes argues that the Charter, official bilingualism, multiculturalism, and reform of the law on issues of sexuality all reveal Trudeau to be a consistent advocate of pluralism as opposed to the deliberate maintenance of old or traditional loyalties. Although sometimes expressed in the language of rights, Trudeau's concern always seems to have been with how to bring about a better society. For Forbes, Trudeau's policies express with some clarity a vision of Canada achieving "unity in diversity", as opposed to a kind of unity that results from mere uniformity and the accident of birth.
Like bilingualism, multiculturalism required deliberate government action to work against a tendency toward a "process of assimilation" which is "associated with arrogance on one side and resentment on the other." Trudeau and his supporters believed that Quebec nationalism would be weakened if Quebec Francophones were made to feel welcome throughout Canada. (There is an obvious problem here, given the continuing strength of Quebec nationalism, but Forbes suggests that Trudeau's policy at least "helped to ward off separation for the better part of a generation.") An immigration policy that deliberately welcomes people from many different backgrounds is also an important step. To make these policies a success, Canadian governments at all levels "would have to have some multicultural policies." The Charter enables the courts to perform a supervisory role-not simply to see whether individual rights, drawn from a limited list, are protected, but to ensure that minorities, especially previously disadvantaged ones, are respected.
It is possible that the ethnic groups existing in Canada in 1968, when Trudeau became prime minister, could have been accommodated in some less ambitious way, possibly following the example of Switzerland; but such a "boring" model "would do nothing for human dignity." According to Forbes, the project that we can detect in Trudeau's actions, more than in his words, is a truly moral project: "It appealed to [Canadians'] moral sense, challenging them to rise above their irrational fears and traditional prejudices in order to do something important for mankind." Canadians would have to "accept .judicial (and quasi-judicial) supervision," and "discover new ways of ferreting out and punishing `hate' without seeming to compromise their deep devotion to diversity of opinions and behaviour or their liberal principles of individual rights." Trudeau's vision demanded self-sacrifice, above all because it was an experiment that might benefit future patients more than it does the experimental subject: Canada. "Trudeau called upon Canadians to embark on a noble experiment for the sake of increasing mankind's political knowledge. Humanity stands to gain from Trudeau's experiment with Canada, no matter how it turns out."
The Forbes article helps to show why Peacock and other contributors see themselves as defending lost causes. One can see at a glance, as it were, why a liberal vision of Canada, with pluralism at or near its core, an appeal to sacrifice, and Trudeau its hero, would have more appeal to the young and the educated than Selick's libertarianism, vague talk about community and unifying myths, or Tory arguments in favour of British traditions. On the other hand, Trudeau's vision also seems somewhat impoverished in Forbes's account, and several contributors make a good case that pluralism as it is practised now is understood by its proponents to be, and is, an irrational shouting match.
The collection as a whole, then, whether intentionally or not, reminds the reader of the rise of the Reform Party out of the ashes-or atop the crumbling foundations-of the Progressive Conservative Party. In the absence of an old British or English Canadian sense of unity, those of us in English Canada who do not find in Trudeau's pluralism a plausible vision of national unity may wonder where to turn. Our best hope may be an emphasis on universal rights and freedom from group rights-indeed as little recognition of groups qua groups as possible. Since the central government, in this view, no longer stands for the whole country in a deeply unifying sense, national programs should be cut along with taxes. Property rights are to be respected-the absence of such rights from the Charter is mentioned by three contributors here-and crime is to be punished with some severity. One question this program raises is whether Canada has any unifying purpose or mission, and indeed whether Canada has any reason to exist; David Frum, to take a well-known example, helped to organize the Winds of Change conference and then moved to the U.S., and two of the contributors to this collection now live in California.
Many Canadians seem to want something more, and perhaps Jean Chrétien succeeds, despite his lack of clear policies, simply because he somehow, vaguely, stands for that aspiration. The logic of this collection points us toward an admiration for the U.S., but the creed of individual rights in that country has led not only to self-seeking and materialism, but to great unifying and ennobling national crusades. Can Canada achieve something similar, and is there a Tory vision, marrying our past to our present and future, to oppose to the Liberals' rather bland success? This collection raises such questions, and suggests at least that it was a positive development when the Charlottetown Accord-the handiwork of a Progressive Conservative government in Ottawa-failed. Yet on the whole the reader is left thinking that the contributors hold out little hope for either the Tories or Canada.
Lloyd W. Robertson, Ph.D., has taught political science, including political philosophy, in both the U.S. and Canada. He is now on the staff of the government caucus at the Ontario legislature.