People Power?

The Canadian Charter of Rights and freedoms was sold to Canadians as the “people’s package” of constitutional reform, one that would empower citizens at the expense of the legislatures and governments. And, to be sure, the provincial governments opposed it because it curtailed their powers (as well as that of the federal government). Still, I have always thought it somewhat paradoxical to say that constitutional rules that transfer power from (elected) legislators to (unelected) judges are a form of people power. They may well be good for other reasons, indeed they may well be good precisely because they make it possible to resist the will of the people, but to describe them as the “people’s package” has always struck me as paradoxical. (I discuss my unease with the way we relate to the Charter, or it relates to us, here and here.)

All the more interesting, then, to find out that at least some elected officials apparently think of the Charter in exactly this way. In a column on iPolitics (lambasting Stephen Harper and his government for disregarding the Constitution), Michael Harris quotes “[a] former Harper cabinet minister” as saying that

[Mr.] Harper hates the [C]harter because it transferred power from Parliament to the people. There was a higher authority than the government of the day which he just can’t accept — even though many of his own MPs have a copy of the charter hanging on the walls in their offices.

So there ― exactly as Pierre Trudeau said it would, the Charter “transferred power from Parliament to the people.”

Mr. Harris insists that the “higher authority” that Mr. Harper so resents is not the Supreme Court, which interprets the Charter but the constitution itself. Fair enough. But is the constitution the same thing as the people? When we say that the constitution is supreme over the government of the day (which it sets up, through a mechanism of democratic election!), does we mean that the people are supreme over the government (which they elected!)?

We can look for a way out of this paradox in Randy Barnett’s understanding of “popular sovereignty” as an individualistic rather than a collective concept (which he develops, for example, in this talk). According to prof. Barnett, each and every citizen is sovereign, rather than citizens being sovereign jointly. Individuals do not give up their rights to the government ― they could not rationally do so. The citizens’ assertion of these rights against the government (by enlisting the courts’ power, which prof. Barnett insists is not really a power, but a duty, of judicial review) is thus an exercise of popular sovereignty, at least as much as (if not more than) the enactment of laws by democratically elected legislatures.

But while this strikes me as a normatively attractive conception, I wonder whether it was shared by Pierre Trudeau and the other “framers” of the Charter. It seems to me that they belonged to the progressive/New Deal current of thought which prof. Barnett and his fellow libertarians oppose, and which very much embraces the collective conception of popular sovereignty that prof. Barnett rejects. Perhaps I am wrong, and Trudeau really was, in some ways or on some days at least, something of an individualist libertarian.

This may all matter very little. The facts are quite clear, and hardly open to controversy: the Charter limits the government’s power, as do various other provisions and even the architecture, whatever exactly that is, of the constitution; the Supreme Court has been entrusted with the articulation of constitutional rules, partly by necessary implication from the constitutional text itself, partly by its own jurisprudence; Mr. Harper detests everything and everyone that impedes his untrammelled power, which includes the Charter and the Court that applies it. Whether we refer to this system as one of popular sovereignty à la Barnett, or of constitutional supremacy, is not terribly important. Not in the short term, anyway. In the long run, however, how we think of our system of government matters, because it will help decide whether we keep it.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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