History – Double Aspect

Shapes and Sizes

Public lawyers (and public law students) should think about government size―and shape

I am currently in the process of making slides for the early lectures in the constitutional law course I am due to deliver in the next month or so. One of them, for a lecture on the basic concepts of the UK constitution, looks like this:

Slide explaining government size in the United Kingdom

With this slide, I want to make three points that I thought are worth sharing here too. One is obvious, but not sufficiently thought of in public law. One was actually something of a revelation to me. And one is connected to my recent post on the “good government trilemma” ― the unpleasant trade-offs between democracy, government size, and accountability.

The obvious point is that government is very, very big. In the UK, it spent just over 40% of GDP in pre-pandemic years. The figure is substantially higher now. Another way to understand its size and complexity is the number of ministers, though in fairness the UK is something of an outlier here: it has as many ministers as New Zealand has MPs, opposition ones included. But the Canadian cabinet has almost 40 members nowadays ― and of course it does not need people to deal with provincial issues.

Although well-known (though perhaps not to first-year law students), I think this reality is worth highlighting in the context of a public law course. For one thing, it shows just how important public law is ― it would matter less in a nightwatchman state. As I hinted at in the “trilemma” post, if you think public lawyers are taking up too much space, one solution is to shrink government. But most people who want to ― metaphorically ― fist kill all the lawyers are not itching to ― metaphorically ― kill all the ministers and civil servants.

It is well known, too, that government is much bigger now than it used to be 100, let alone 150 years ago. Taxation and government spending as percentage of GDP is one convenient way of measuring this. Before the Great War, the UK government was spending 8-10% of GDP (except during the Boer War, when it was somewhat more than that) ― and that was a time when the Royal Navy was as big as its two nearest competitors combined. One could also describe the various areas of human activity that government regulates, as illustrated by the gaggles and flocks of ministers (though perhaps the better collective noun would be a meddling). This expansion, as opposed to the sheer magnitude of the end product, is often mentioned in administrative law, because writers on the subject, at least in North America, tend to think that it justifies the existence of a more-or-less unsupervised administrative state. It could, of course, just as well be taken as evidence of the administrative state’s malignancy. My point in the lecture will not be to take sides ― that’s not a lecturer’s role ― but this blog’s readers will know which way my sympathies lie.

Less well known ― indeed, something of a surprise to, though perhaps I am simply an ignoramus ― is that fact that by some measures government is now much less active than it used to be. Specifically, I mean the much-reduced number of statutes being enacted annually. My numbers, for the UK, come from a study by Chris Watson for the UK’s House of Commons Library, and those on the slide may be understating matters: in the last few years, the number of statutes enacted each year has fallen further, from the low 30s to the low 20s. (I’ve not put this on the slide because it might still be a temporary blip; but how long can something temporary last before it isn’t temporary)? It averaged about 100 if not more before WWII. Granted, these numbers don’t tell us everything; it may be that the complexity and/or length of statutes being enacted has increased, compensating for the lower numbers. But they are nonetheless suggestive. The volume of delegated legislation, by contrast, grew enormously from 1950, and indeed 1980, to the mid-1990s and stayed at that level until, it would seem, Brexit. It then fell off a cliff, relatively speaking, though there are no data for the period before 1950 ― I suspect it would have been substantially less at least until the Great War, and perhaps later.

This means that not only the size, but also the shape, if you will, of government has changed a lot over the last century. It is a great deal more executive-dominated than before. Parliament grants the executive enormous resources and vast delegated legislative powers, but it does not act as much as before for itself ― or rather, given the executive’s control of Parliamentary agenda, isn’t allowed to act. This too isn’t exactly a shocking discovery ― it is not really a discovery of any kind ―, but I think it needs to be kept mind when we assess claims about, for example, the judiciary’s real or alleged interference with Parliament, the important of the political constitution, and so on.

And this brings me to my third point, which follows from the trilemma I have previously discussed. It is that when we discuss public law, and especially when we discuss the changes that public law has undergone since, roughly, the 1960s ― both in the UK and in Canada (and New Zealand too). The judicial role has expanded a great deal in these jurisdictions, albeit in somewhat different ways. UK courts might be more intrusive vis-à-vis the executive; Canadian courts have been granted greater powers vis-à-vis Parliament. There is no question that, by the standards of 1950, let alone 1900, courts are more influential. But this development did not take place in a vacuum. It occurs, not coincidentally I would argue, in parallel with a vast expansion of government, and therefore of the government’s capacity for messing with people’s lives. To insist that the law used to control a government of the size and shape it has in 2022 should be as minimalistic as it was in 1872 or even 1922, or that Parliament can remain the primary if not the sole forum in which government is kept accountable as the government looked as it did in Dicey’s time is either mad or disingenuous.

This argument, by the way, does not in any way depend on thinking that government expansion, without more, is bad. Admittedly, I think it is ― I can say so here, though that will be beside the point in my lecture. But you can very well disagree with that, but still believe that an appropriately expanded government requires the kind of accountability and supervision that the courts have increasingly come to provide (in part thanks to their own efforts and in part because they were asked to do so). That said, I do wonder whether colleagues for whom the expansion of government over the last century is a welcome phenomenon might be less inclined to reflect on its implications, simply because they see it as natural, and it is human nature to think less about what one thinks of in this way. Small-government heretics have their uses in public law academia ― but then, I would say that, wouldn’t I?

Swan Upping

A medieval ritual as a metaphor for British constitutional history

Every summer, barring a plague, an age-old ritual takes places on the Thames: the Royal Swan Upping. Led by the Royal Swan Marker, “[t]he Royal Swan Uppers, who wear the scarlet uniform of Her Majesty The Queen, travel in traditional rowing skiffs together with Swan Uppers from the Vintners’ and Dyers’ livery companies”. Truth be told, the skiffs are mostly towed by a boat with an engine, but the whole thing does look pretty grand. I know, because I went to see it yesterday.

The Swan Upping arrives at Sonning Bridge: July 20, 2022

Scarlet uniform: check. Royal flag: check. Awesome swan flag on the towing boat: also check. Even Galadriel would be proud, I think. (And, come to think of it, I’m wondering if the Swan Upping has helped inspire Professor Tolkien.)

The reason I’m writing about it here, though, is that there is a fascinating legal-historical and indeed constitutional dimension to the Swan Upping story. As Katy Barnett explains in a most instructive post over at Legal History Miscellany the reason for the glorious scarlet uniforms’ presence is that her majesty has a special relationship, one might say, with the mute swans of the Thames:

[t]he ancient origins of the monarch’s ownership of swans are shrouded in mystery. The first mention of mute swans being a ‘royal bird’ comes from Gerald of Wales (‘Giraldus Cambrensis’) in the late 12^th century. It is generally deemed part of the royal prerogative by custom, then entrenched in case law and statute. (Footnote omitted)

The office of the Royal Swan Marker goes back (at least?) to the 14th century:

In 1361, Thomas de Russham was given responsibility by the king for “the supervision and custody of all our swans as well as in the water of the Thames as elsewhere within our Kingdom.” Thereafter, the king had an officer who was Master of the King’s Game of Swans (also known as the Royal Swan-herd, Royal Swannerd, or Royal Swan-master).

The Swan Uppers, now doing their own rowing: Sonning, July 20, 2022

In the Middle Ages, the scarlet uniforms were not just for show: swan ownership was tied up with social hierarchy:

In 1482 and 1483, Edward IV’s Act for Swans was passed to prevent unlawful keeping of swans by “Yeomen and Husbandmen, and other persons of little Reputation”. Accordingly, the only people who could have swan marks or own swans were noble and rich people

And “only the monarch could claim unmarked mute swans”. This is what the Royal Swan Upping was:

[p]eople would catch the swans, record the ownership of the birds and their offspring, and place markings upon the beaks of the birds. It seems that the marks were achieved by inscription with a knife or by branding. The swan-master was to meticulously maintain the marks in an ‘upping book’.

Nowadays, of course, the whole process is much more humane, and its point is no longer to ensure the steady supply of swans for royal Christmas feasts as in the Plantegenets’ and Tudors’ times. As the Royal Swan Marker explains,

Swan Upping plays an important role in the conservation of the mute swan and involves The Queen’s Swan Warden collecting data, assessing the health of young cygnets and examining them for any injuries. Cygnets are extremely vulnerable at this early stage in their development and Swan Upping affords an opportunity to help both adults and cygnets that might otherwise go untreated.

In this way, the process really is emblematic of the British constitution: its origins are in medieval royal absolutism, later reinforced and partly taken over by statute, and eventually re-thought for a more caring and democratic age, with the scarlet uniforms more or less intact. So it only makes sense that I went to see it, and that I blog about it!

End of a Swan Upping day’s work: Sonning, July 20, 2022

Esprit d’Escalier

Just two years after its notorious decision in Gray’s case, the Supreme Court took a more skeptical view of the executive’s claims of broad emergency powers

There is a wonderful French phrase that describes the flash of wit that only comes well after the conversation in which it would have served is over ― say, as one is walking down the stairs, leaving the party: esprit d’escalier. We’ve all had it, no doubt. A so has the Supreme Court ― or so it seems to me after reading an old decision co-blogger Mark Mancini recently pointed out to me, In re Price Bros and The Board of Commerce of Canada, (1920) 60 SCR 265.

This case offers a spirited example of robust statutory interpretation being used to counter-act an overbroad grant of discretion to the executive in wartime legislation. For this it deserves to be more widely known (and I take it that this was Mark’s first interest in the decision). But, for my part, I cannot fail to note the sad contrast with the Supreme Court’s better-known engagement with such things just two years earlier, with In Re George Edwin Gray, (1918) 57 SCR 150.

Recall that in Gray, a majority of the Supreme Court adopted an extremely broad reading of the powers delegated to the Governor-in-Council by the War Measures Act, 1914. Specifically, the key issue there was whether the governor could, by regulation, override an exemption from the obligation to do military service that had previously been granted by statute. In the leading judgment (in which three of the four judges in the majority concurred), Justice Anglin recognized that

[n]o doubt the amendment of a statute or the taking away of privileges enjoyed or acquired under the authority of a statute by order-in-council is an extreme exercise of the power of the Governor-in-council to make orders and regulations of a legislative character. (180)

Still, he found that it was justified, in view of the breadth of the grant of powers in section 6 of War Measures Act

to do and authorize such acts and things and to make from time to time such orders and regulations as he may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada.

These words were followed by an enumeration of specific subjects the regulations could address, but since that was introduced by a clause providing that the enumeration was “for greater certainty, but not so as to restrict the generality of the foregoing terms”. For Justice Anglin, this meant that it would be wrong to apply to ejusdem generis maxim of statutory interpretation, which suggests that mention of examples means that the general category has to be understood by reference to these examples.

And Justice Anglin insisted, too, that

The exercise of legislative functions such as those here in question by the Governor-in-council rather than by Parliament is no doubt something to be avoided as far as possible. But we are living in extraordinary times which necessitate the taking of extraordinary measures. (181-82)

Chief Justice Fitzpatrick made a similar point:

It seems to me obvious that parliament intended, as the language used implies, to clothe the executive with the widest powers in time of danger. Taken literally, the language of the section contains unlimited powers. Parliament expressly enacted that, when need arises, the executive may for the common defence make such orders and regulations as they may deem necessary or advisable for the security, peace, order and welfare of Canada. The enlightened men who framed that section, and the members of parliament who adopted it, were providing for a very great emergency, and they must be understood to have employed words in their natural sense, and to have intended what they have said. (158-59)

Meanwhile, Price Bros concerned an order of the Board of Commerce requiring a paper company to supply specified quantities of newsprint to certain newspapers. (Remember those?) Simplifying somewhat, the Board’s jurisdiction to make such an order was supported on two grounds. First, a previous order under the War Measures Act invested the Board with the powers of a “Commissioner and Controller of Paper”, including, specifically, the power to make orders of this nature. Second, the Board separately had jurisdiction under the Combines and Fair Prices Act (the forerunner of the Competition Act) to regulate trade in a “necessary of life”, defined as

a staple and ordinary article of food (whether fresh, preserved, canned, or otherwise treated) clothing and fuel, including the products, materials and ingredients from or of which any thereof are in whole or in part manufactured, composed, derived or made, and such articles of any description as the Board may from time to time by special regulation prescribe.

The Supreme Court, with only Justice Mignault dissenting as to the War Measures Act, and unanimously as to the Combines and Fair Prices Act, found that the Board’s order was ultra vires.

Justice Idington, who had dissented in Gray, effectively rejected its holding that the delegation of power under section 6 of the War Powers Act is practically unlimited and isn’t confined to the matters enumerated in that provision. For him, one of these subjects had to support the impugned regulations, and none could. In particular, authority to regulate “trading, exportation, importation, production and manufacture” cannot

apply to the mere direction of selling newsprint paper by a manufacturer thereof to a person wishing to use it. Indeed, after much consideration, I cannot think how that purely business transaction of a very ordinary type can be said to have any relevancy to the matters therein specified of possibly vital importance in many ways conceivable in a state of war. (270)

Justice Brodeur, who had also dissented in Gray, was of a similar view.

For their part, Justices Duff and Anglin, who had been in the majority in Gray, neither contradicted nor endorsed this analysis; nor did they so much as mention Gray. (Nor did their colleagues, for the record.) They focused on a somewhat different issue: that regulation of the paper trade in 1920, a year and a half after the armistice and almost a year after peace was officially concluded, could not sensibly be said to be “necessary or advisable for the security, defence, peace, order and welfare of Canada” “by reason of the existence of … war”. Justice Duff was all circumlocution, but Justice Anglin went so far as to say that it would take bad faith to really think so, and the government must rather have been mistaken about its war powers subsisting despite the war having ended, to “[t]he common knowledge possessed by every man on the street, of which courts of justice cannot divest themselves”. (279)

As for the other argument, to the effect that the Board could regulate newsprint as a “necessary of life”, the Court was, as mentioned above unanimous in rejecting it, and indeed in finding it rather unserious. Justice Anglin’s reasons, though, are worth a closer look, because they offer yet another point of contrast with Gray. In that case, he had found that the prefatory “for greater certainty, but not so as to restrict the generality of the foregoing” excluded the application of the ejusdem generis canon of interpretation. Not so here with the “articles of any description” clause, though Justice Anglin explicitly noted that

[a]t first blush the words “of any description” appended to the general words “other articles” would almost seem to have been inserted to indicate an intention to exclude the application to this section of the ejusdem generis rule, and to require that the general words “other articles” should here be given their ordinary general construction. (283)

But, Justice Anglin said, “consideration of the character of the Act and of the context as a whole” suggests “that Parliament cannot have meant that words the ‘other articles’ should bear their ordinary broad signification”. (285) For one thing, Parliament wouldn’t have needed to describe staple foods explicitly, if it were otherwise; for another, because the designation of an item as a “necessary of life” by the Board allowed for the imposition of criminal penalties for its “accumulation or withholding from sale”, he found it

inconceivable that Parliament meant to confer such wide and unheard of powers. I rather think that no one would be more surprised and shocked than the legislators themselves were they informed that they had done so. I am therefore satisfied that Parliament must have intended that the words “other articles of any description” in sec. 16, notwithstanding their obvious and emphasized generality, should receive a much more restricted construction. (286)

Justice Anglin observes, for good measure, that Poarliament “must be taken to have been fully cognizant of … the ejusdem generis rule of construction so frequently acted on by the courts”. (286)

All that makes sense to me; there is much to like about Price Bros. But wouldn’t the arguments that prevailed there ― and prevailed rightly ― have applied with equal force in Gray? If general language referring to “articles of any description” could be read down to only apply to a comparatively narrow class of items; if the courts, rather than an administrative board, could authoritatively interpret what is necessary for life; if Parliament must be taken to be cognizant of the ejusdem generis principle when legislating; a fortiori, if the limited reading of the War Measures Act offered by Justices Idington and Brodeur deserved no express disagreement; why wasn’t any of that so in the earlier case?

The answer, I’m afraid, seems inescapable. When the judges saw “extraordinary times”, a “time of danger”, “a very great emergency”, they saw also “extraordinary measures” taken by “enlightened men”. Once the danger had passed, the enlightened men became capable of incompetence if not bad faith, and judges gathered their wits, or redressed their backbones. A Marxist take on it all might point out that the Supreme Court refused to take the side of a simple farmer torn off from his land and sent to do and die, but did side with capitalists denied the opportunity of profit. But I am no Marxist, and have no reason to suppose that this is fair. More likely, the older maxim is the better: Inter armes tacent leges.

So perhaps this is all inevitable. Perhaps we should even be happy that the judges did, after all, recover ― mostly. Consider Justice Mignault’s partial dissent in Price Bros: Neither common knowledge nor even proclamations by the King satisfied him, and he insisted that only a proclamation by the Canadian government, in the form prescribed by the War Measures Act, would have put an end to the government’s emergency powers under that Act. The government had not troubled itself with issuing such a proclamation. This might be something to ponder as we are dealing with one emergency, and facing strident calls for governments to proclaim and assume enormous powers to try to deal with yet another, climatic, one.

But this brings me to the last point I’ll make here, and it might be a somewhat hopeful one. Gray is usually taken as authority for Parliament’s ability to delegate vast powers to the executive, especially in emergency contexts. That’s true, so far as that goes. But it’s worth noting, first, that just two years after it was decided it may already have been seen as something of an embarrassment, including by the same judges who decided it. Perhaps more significantly, at the very least, Price Bros should be taken as authority for the proposition that courts should not take the executive’s assertions about the existence of emergencies and the need for emergency powers on faith. However deferential they may be while the emergency is ongoing, their willingness to check the executive in this respect is a salutary constraint on powers that could easily destroy the constitution in its absence.

One of the Institutions of the Land

More mixed feelings about John A. Macdonald

Some time ago, I posted my impressions on reading the first volume of Richard Gwyn’s biography of Sir John A. Macdonald. I came away from it with admiration for Macdonald’s role in creating Canada and its institutions, but not much love for the man. I have now finished reading the second volume, which covers the period from Confederation until Macdonald’s death in 1891. Here are some further thoughts on the man who continues to generate frantic hatred, determined admiration, and weary exasperation.

My dislike of Macdonald’s nationalism has only been reinforced, although this may be as much Gwyn’s fault as his own. My assessment of the first volume was mostly positive ― I said it was “serious but no less engaging for that, and written with both sympathy for its subject and honesty about his flaws”. These comments, so far as they go, apply to the second volume too. However, the biographer’s nationalist convictions ― already evident in the first volume ― really appear to overwhelm the narrative at times, and leave me wondering whether he does not attribute his own thoughts and purposes to his subject.

In this post, I will address three themes that stood out to me (and ignore any number of other aspects of Macdonald’s life: the Canadian Pacific scandal, for example, or his doting on a disabled daughter). First, nationalism and especially Macdonald’s National Policy, so iconic that my friend Asher Honickman and Ben Woodfinden have sought to recycle its label, if not also its substance, for contemporary purposes. Second, constitutional law and especially the jurisprudence of the Judicial Committee of the Privy Council. And third, Macdonald’s relationship with Aboriginal Canadians and other minorities.

The National Policy, which Macdonald first proposed in the 1870s in response to a global economic crisis and pursued through the remainder of his life and career, imposed high tariffs on most imports. The hope was to spur Canadian manufacturing and improve the prospects of the growing numbers of industrial workers. Gwynn does his best to write warmly of this policy, proceeding from what he takes to be the axiom that having stuff made in Canada by Canadians is a Good Thing. We are supposed to admire Macdonald’s nation-building instincts for seeking to bring about this result.

But why exactly? Gwynn recognizes that the National Policy was no great economic success. To be sure, the protected manufacturers initially did well. But it’s not clear that overall employment improved. What is clear is that the years of the National Policy were also the years during which, as Gwynn notes, Canada lost population: thousands upon thousands of its people left for the better prospects in the United States, while the hoped-for immigrants from Europe mostly did not come. I take it that this a complex story: many francophone Quebeckers left for reasons that might have been peculiar to their situation and beyond the power of federal politicians to remedy. But certainly the National Policy failed to achieve its economic objectives. And despite its protectionist policy, Canada’s economic fortunes remained tied to those of the world beyond its borders. Things went better when the global economy improved, and worse when it deteriorated.

But economic nationalism is not merely futile, or even counter-productive; it is also deceitful and, , despite its name, more divisive than truly national. While benefitting the manufacturers and perhaps their workers, the National Policy hurt farmers, who increasingly depended on manufactured implements, for which they had to pay more, and who were hit by retaliatory tariffs on their exports. In the name of the nation, a minority reaped the profits, while a majority paid the price. Macdonald knew this of course. But from the beginning of the policy, he misrepresented it as more or less cost-free and avoided using the language of protectionism, knowing that it would be unpopular. In his last election campaigned, he made thinly veiled insinuations of treason to discredit the pro-free trade Liberals.

To my mind, there is nothing admirable in any of this. The history of the National Policy is one of grift and lies. It ought to count against Macdonald on any assessment of his merits ― but even for people who do not admire him like Gwynn, it seldom does. That certainly says more about us than about Macdonald.

In contrast to the first volume’s relative lack of interest in the shaping of the text of what we now call the Constitution Act, 1867, the second volume of Gwynn’s biography devotes some attention to that text’s interpretation by the courts and Macdonald’s reaction to it. Or rather, from Gwynn’s perspective, the courts’ ― and specifically the Judicial Committee of the Privy Council’s misinterpretation and Macdonald’s failure to respond. Gwynn adopts entirely the view, which has long been ascendant in the progressive English-Canadian legal discourse, that confederation was meant to be highly centralized, and that blundering or outright malevolent British judges remade it into something almost, but not quite, entirely unlike its true self.

Macdonald, in Gwynn’s telling, is a victim of this process, suffering from a sort of Stockholm syndrome if not permanent false consciousness. Due to his longstanding admiration for the British legal system and the men running it, he never does much of anything to try countering the step-by-step perversion of his constitutional design. Power-hungry provinces and haughty, stupid jurists doing their bidding in London run the show, while the Prime Minister, so wily, so ambitious, and so determined in just about every aspect of politics, keeps a stoic, resigned silence.

As the reader may have guessed, I find this picture quite implausible. Granted, I also happen to think that the cases which Gwynn and his predecessors in the Canadian legal academy find so offensive were correctly decided. Perhaps that makes me biased here ― but at least it is not, as was often their case, a partisan bias. I dislike and fear both the federal and the provincial governments, roughly equally. They have a clear preference for federal power. But be that as it may, is it not simply more logical to think that, if Macdonald never seriously protested, and never sought to have the UK Parliament revise Canada’s constitutional balance, it is because he did not find the Privy Council’s jurisprudence so out of kilter with his own views of Confederation?

More precisely, is it not more consistent with everything else we know about Macdonald to suppose that he understood that, whatever his personal preferences ― which were, to be sure, for greater centralization ― these preferences weren’t shared even by his political allies (in Québec and, say, Nova Scotia), let alone his opponents. He knew that the constitution that was enacted in 1867 was not quite as centralized as he might have wished. He would also have known that the way in which it was interpreted was not an aberration or an usurpation, but a plausible application of what had been enacted. It’s likely enough that he would have preferred the courts to rule differently. But there is quite a gap between such a preference and a regret that things turned out the way they did, and the picture of pathetic impotence presented by Gwynn.

I turn now to the issue on which Macdonald’s reputation now seems be foundering, at least in some circles: his relationship to the non-white-male sections of society. It’s complicated. One thing to note is that Gwynn’s book, published less than a decade ago, already seems somewhat dated. It barely even mentions residential schools, if it mentions them at all. That seems like a gap. At the same time though, this does suggest that there is a lot more to judge Macdonald by, for the better and for the worse, than this one issue.

Gwynn does devote a great deal of attention to Macdonald’s policy and views toward the Métis (including, but not only, Louis Riel and his companions) and the Prairie First Nations. Macdonald seems to have been somewhat inconsistent, and often the issue did not attract as much of his attention as it deserved. By today’s standards he could be utterly heartless, and the people whose way of life was crumbling in the face of advancing white settlement were often left to suffer without aid or sympathy. As Gwynn points out, the principle that people should not be counting on the state’s help was not only applied to Aboriginals ― but he doesn’t note, in this connection, that the National Policy was a welfare policy of sorts, albeit a destructive one, as welfare policies tend to be. And generally, Gwynn writes that Macdonald ― despite flashes of recognition of the priority of Aboriginal presence in Canada ― didn’t believe that First Nations could truly be part of the Canadian society. (It was a more complicated story with the Métis.)

And yet. It may be daft to point out that, if nothing else, the Canadian state under Macdonald (or later) didn’t physically exterminate its Aboriginal population ― unlike its neighbour across the 49th parallel. But it mattered then. And there is more than just that. How many people tearing down his statutes know that in 1885 Macdonald pushed through electoral legislation that enfranchised (some) First Nations men? They were then disenfranchised by legislation enacted by Wilfrid Laurier’s Liberals. I have to admit, I did not know that either. One can certainly object that the franchise is pretty useless when you are starving. That’s fair enough. But if we are interested in assessing Macdonald’s views and record, I still think that his choice to expend political capital on this legislation, from which he did not stand to benefit much at all, has got to count for something. Towards the end of his life, Macdonald was a man increasingly behind the times, a mid-19th century man surviving in the century’s closing decade. As it happens, though, attitudes towards Indigenous peoples were more benevolent ― not, to be sure, egalitarian ― in the middle of the century (not just in Canada ― this was true in New Zealand also), and Macdonald’s views reflected this.

Just as strikingly, to me, Macdonald sought to include women’s suffrage in the same bill that enfranchised First Nations Canadians for the first time. He failed. Despite the fact that this measure would likely have benefitted his party ― Macdonald being very popular with women, apparently ― there was more determined opposition to it, and Macdonald did not get his way. If he had, Canada would have beaten New Zealand to egalitarian bragging rights and, more importantly, enfranchised women a generation before it eventually did (under another self-interested Conservative government). Again, I did not know this, and I suspect that many of Macdonald’s critics ― and perhaps more than a few of his boosters ― don’t either.

The last point I will mention here concerns immigration. Here too, Macdonald’s record is better than Laurier’s. But it’s not great. Macdonald’s government made an effort (not always successful, but real) to recruit immigrants in Europe, including (and even especially) within minority groups persecuted in their home countries. But things were very different where non-white immigration was concerned. Macdonald himself seems to have had little sympathy for the anti-Chinese feelings growing in Canada, especially in British Columbia, towards the end of his life. But he eventually went along with them and brought in legislation that imposed a tax on Chinese immigrants, and so sharply reduced their numbers, although it wasn’t yet set at the prohibitive levels that Laurier’s government would bring in. It was, if I understand correctly, the first immigration restriction in Canadian history, and there is no question that it was motivated by racism, even if not personally felt racism.

So what are we to make of Macdonald? Much depends of course on how we go about making the judgment. The common assumption seems to be that Macdonald was a great man and blameless of any particularly great sins by the standards of his time, and also that he deserves clear condemnation if judged by our contemporary views of political morality. I’m not sold on either view.

Even against the standards of his own time, the National Policy and, more generally, Macdonald’s nationalism, especially in its ugly partisan aspects deserved condemnation. Macdonald knew that the policy was benefitting a section of the nation at the expense of others ― and did his best to hide this and deceive the voters. And the advantages of free trade had been understood for a century by the time he deluded the voters into thinking that he found a weird trick for economic prosperity. Similarly, Macdonald knew that the restrictions on Chinese immigration were an unprincipled sop to populist feeling, even though he wouldn’t have thought about them in terms of racial equality as we do now.

And then, of course there is the matter of the Canadian Pacific scandal, and government corruption more generally. I haven’t focused on that, partly because, to be honest, I’m still not sure I understand what happened, and partly to save space. But mostly, I think this is not the most interesting or important part of Macdonald’s legacy. If, however, we think about him from the perspective of his own time, this issue should probably assume the importance it had for his contemporaries. And this is not to Macdonald’s advantage.

Conversely, though, looking back at Macdonald from today’s vantage point need not lead to unreserved condemnation. As I argued in my post on Gwynn’s first volume, for all his failings on an egalitarian standard, he has had a decisive influence in securing Canada’s independence, and sovereignty in the West. This was not, to put it mildly, an unmitigated blessing for the West’s Indigenous peoples, but it beat the alternative, which was not ― by 1870 ― the preservation of the Indigenous peoples’ freedom and way of life, but colonization by the United States. Macdonald’s enfranchisement of First Nations’ men and even his failed attempt to secure women’s suffrage also deserve a great deal more credit by our standards than by those of his own time.

Wilfrid Laurier eulogized his late rival by observing that “his stesmanship … is written in the history of Canada” and that

the life of Sir John Macdonald, form the date he entered Parliament, is the history of Canada, for he was connected and associated with all the events, all the facts which brought Canada from the position it then occupied―the position of two small provinces, having nothing in common but their common allegiance, united by a bond of paper, and united by nothing else―to the present state of development which Canada has reached.

Laurier also compared Macdonald to “one of the institutions of the land”. All this was accurate, and remains relevant. Ultimately, one’s judgment on Macdonald is one’s judgment on Canada itself. Many people see the very real flaws and sins, and judge negatively. But, for my own part, I compare to the alternatives, and judge―not without sorrow and reproof―but with gratitude.

Would That I Could Love You

My mixed feelings about Sir John A. Macdonald

Sir John A. Macdonald has been much attacked of late; despising him is a reliable signal of progressive virtue, and a symptom of a broader pattern of contempt for people and institutions that have created the most prosperous, freest, and most egalitarian societies the world has ever known. The Faculty of Law at Queen’s has decided to remove Macdonald’s name from its building; his statues have been vandalised or removed; and so on.

For my part, I have been sufficiently provoked by all this to finally, and belatedly, read the late Richard Gwyn’s biography of the man. I have now finished the first volume, which runs from Macdonald’s birth in 1815 to Confederation. Having gone into it with a great deal of sympathy for Macdonald, I come out with very mixed feelings ― but not for the reasons that motivate his progressive critics. What diminishes Macdonald in my eyes is his nationalism ― and, if anything, I wonder that it does not raise his stature in theirs.

Before I explain myself, I should say something about the book itself. Mostly this: you should read it, if you haven’t yet. It’s a breezy read despite being fairly long. It is serious but no less engaging for that, and written with both sympathy for its subject and honesty about his flaws ― and I say this despite not being fully persuaded by Gwyn’s assessment of Macdonald. From a constitutional history perspective, the discussion of Confederation feels a little thin, but this is unfair reproach to level at a book meant for a general audience, and really doesn’t take away from Gwyn’s achievement.

Gwyn’s thesis regarding Macdonald (at least Macdonald as a politician and up to Confederation) is that, other than the enjoyment of the political game and of the power that it brought him thanks to his supreme ability at it, Macdonald’s motivation was above all to preserve Canada as a non-American, and if possible as a British, political community. He sought, first, to make the Province of Canada work, and then to build a strong, centralized federation as a means to prevent what seemed to many ― in Canada itself, but also in the United States and even in Britain ― like the inevitable annexation of the British North American colonies to the American republic.

Loyalty to Britain and opposition to America was both Macdonald’s inner spring and his go-to rhetorical trope. One of the book’s chapters is named “Canada’s First Anti-American”. Macdonald seized on opponents’ flirtations with annexationism or simply on hesitations and accused them of treason. He did not have a very definite view of what his Canada ― first the province, then the Dominion ― ought to be like; he was (to his credit!) no religious zealot or bigot, and ideologically he insisted on leading a broad, perhaps even a shapeless, party, which he cheerfully persuaded erstwhile opponents to join. But on Canada’s distinctiveness, he was unflinching and ruthless.

Gwyn further makes the case, and he makes it convincingly, that Macdonald’s political talents were absolutely necessary to pull it all off. Of course we cannot know how an alternative history without him would have turned out. But it seems fair to take the widespread belief of politicians and journalists of the time that Canada must in due course ― and sooner rather than later ― become American as indicative of something. Macdonald wasn’t alone in making sure that this did not happen, but, as Gwyn argues, the others ― Cartier, Brown, Galt, McGee, Tupper ― wouldn’t have done it without him. Confederation happened when he accepted that it ought to, and it happened because he put his boundless skill and energy into it. And it seems plausible, quite likely even, that had it not happened then, annexation to the United States would indeed have been inevitable.

For this reason, at the risk of concern-trolling, I would suggest that those who are all about pulling down Macdonald’s statues wherever they can still find them may want to reconsider. Much as they are keen to condemn Canada, the one polity they like still less is the United States. On the specific issue of the treatment of Aboriginal peoples, which most exercises them, shameful though Canada’s record is, would things have been better if the prairies, and then the rest of Canada, had become part of America? And of course on any number of other issues also, the Canadian left has long seen the border as demarcating, if not the good, then at least the tolerable from the evil. That border is Macdonald’s doing. It is the monument to him that they neither can nor, in their brightest nightmares, would want to pull down.

But my own reaction to Gwyn’s argument is not so enthusiastic. Something is missing from it: namely, any clear sense of why Macdonald’s anti-Americanism is something for us to admire. Macdonald himslef was moved, so far as I can tell from Gwyn’s book, by little more than a small-c conservative sensibility and consequent gut reactions. Macdonald believed in Britsh institutions and distrusted, perhaps even despised, American ones, but Gwyn insists that he did not know America well, and was not interested in understanding it. He was horrified by the Civil War, but his absolute rejection of an American future for Canada long pre-dated that conflict. He wasn’t actively rejecting American expansionism (except as it affected Canada), or slavery, or acting on some other grand moral belief. He was a nationalist, driven not by principle but by identity.

The closest Gwyn’s Macdonald comes to articulating a rational argument for his nationalism is his criticism of the US Constitution. As Alastair Gillespie details in his essay on Macdonald for the Macdonald-Laurier Institute (at 29), he equated American presidential system with despotism, and American federalism with anarchy. The president, he said, was unconstrained by his cabinet, while the States were sovereign and the federal government too weak, which he claimed was a cause of the Civil War. These complaints fit poorly together, and Macdonald’s interpretation of the Civil War’s causes is puzzling. I struggle to see what additional federal powers would have prevented the slave States’ rebellion, and it’s not clear that Macdonald ever explained this. I am inclined to think that he either misunderstood the American system (even the pre-1868 American system), or perhaps even gave a tendentious account of it the better to justify his own vision of highly centralized federalism.

To me, Macdonald’s nationalism, as described by Gwyn, is thoroughly unattractive. Like all nationalism, it is essentially negative, fueled by ignorance and incomprehension, which results in distrust and perhaps even contempt. Nationalism, as Macdonald’s fondness for rhetoric of treason shows, also provides easy means for rhetorical escalation, and for divisiveness under the banner of unity. Other forms of identity politics provide similar examples of intolerance in the name of diversity and inclusion.

Now, Macdonald was no ignoramus and no bigot. Quite the contrary! He was intelligent and well read, not only in history, politics, and law, but in literature too; he got on well with Catholics ― far too well for some of his more bigoted critics ―, and with French and Irish Canadians. He helped create a country where some of these differences could eventually be all but forgotten, while other, more enduring ones, have been peacefully accommodated. This is no accident: the accommodation and eventual diminishment of sectional, linguistic, and religious differences was both a motivation for and a consequence of the structure of government the Fathers of Confederation designed. But this is the tragedy of nationalism: it causes otherwise intelligent and open-minded people to act in thoughtless and petty ways. This is also, of course, the tragedy of other forms of identity politics, including those fashionable in progressive circles.

You might be wondering where rejecting nationalism ― Macdonald’s nationalism of all things, a civic-minded version of the doctrine and the sentiment that begat Confederation ― leaves me. Does it mean, for instance, that I must recant all the good I have said of Confederation and of the Constitution Act, 1867?

I don’t think so. I approach this question from an individualist position, expressed as well as anywhere else in Thoreau’s defence of civil disobedience: “Government is at best but an expedient”, he wrote, and “most governments are usually, and all governments are sometimes, inexpedient”. The American government, the one Macdonald looked down upon without ever having seen it very clearly,

what is it but a tradition, though a recent one, endeavoring to transmit itself unimpaired to posterity, but each instant losing some of its integrity? … It is a sort of wooden gun to the people themselves. But it is not the less necessary for this; for the people must have some complicated machinery or other, and hear its din, to satisfy that idea of government which they have.

But of course the Canadian government, whether that of the Province of Canada or the one set up in 1867, is not much different. It too is at best an expedient, and often not even that. It too is a tradition ― much older now than it, or even its American counterpart, was back then ― and a sort of wooden gun to the people themselves, and a piece of din-making machinery. There is nothing about it to be revered.

Now, thinking this does not prevent me thinking that, as governments go, the one contrived by the Fathers of Confederation under Macdonald’s leadership is more expedient than most, and while that is a low bar to clear, it is a real, and meaningful, accomplishment. We can, and should, measure existing institutions against the requirements of our principles, to see how they can be improved. But we can, and should, also measure existing institutions against plausible alternatives. By the first measure ― the one on which the left tends to focus, and of which the right often loses sight ― Canada certainly falls short in important ways. By the second ― which is of more interest to the right, and which the left tends to ignore ― Canada does well enough.

Confederation, moreover, was a real improvement over the system it predated on both measures. It got closer to at least some ideals, by implementing a meaningful federal system and thus advancing the principle of subsidiarity, and was about as good a system as, realistically, one might have conceived of given the facts on the ground and the state of minds in 1860s Canada. As Gwyn makes clear, its achievement was by no means a given; indeed it is quite remarkable. I have no hesitation in admiring it, and the fact that Macdonald’s motivations, and those of the other Fathers of Confederation for that matter, do not strike me as admirable has nothing to do with it. The intent of their creators is not a useful metric by which to assess institutions.

When it comes to individuals, though, motivations and intentions are more appropriately part of what we should base our judgments on. So of course are deeds and consequences. My own judgment on Macdonald ― based on the first part of Gwyn’s biography and of course on my perspective as a constitutional lawyer ― is thus very ambivalent. He helped create institutions that, on the whole, I admire, although they are not without their flaws. But he acted for reasons that are, from my perspective, quite unadmirable.

Indeed, I’m left with the impression that Macdonald, for all his political talent, for all his ability to achieve the seemingly impossible feat of confederation, was rather less wise than I would have liked him to have been. Whatever may be the case in other disciplines, I think it is very true that, in history, he who increaseth knowledge increaseth sorrow. Gwyn tells of an opposition MP rather pathetically telling Macdonald “I love you so! Would that I could trust you!” My feelings are the reverse. From my ― very different ― vantage point, I trust Macdonald, or at least I trust his accomplishment. Would that I could love him!

The Mirror and the Light

Thoughts on finally finishing the last part of Hilary Mantel’s Thomas Cromwell trilogy

More determined readers finished it long ago, but I only did so yesterday, and thought I would offer some thoughts on Hilary Mantel’s The Mirror and the Light, the final book of her Thomas Cromwell trilogy. I suppose I should say “spoiler alert”, but of course there aren’t any spoilers there. We know exactly how the book ends. (And indeed I have blogged about a straight-up biography of Cromwell here.) For Dame Hilary’s readers, it is the journey, not the destination, that matters.

And what a journey it is! The book is well over 850 pages long. To be honest, it really should have been two books. I went into it a huge fan of Dame Hilary and, to anticipate, I come out of it a huge fan still; but my commitment has been sorely tested. There is, inevitably, a mind-boggling amount of detail about the events of Cromwell’s years of power and then his downfall ― indeed, only a sample of the events, as some strands of the historical Cromwell’s story are worn down to barely perceptible threads. But, in addition, the narrative gets lost in meditations ― Cromwell’s or Dame Hilary’s narrator’s, it is characteristically hard to tell; meditations on time and place, on fate and memory, on life and death. It may well be that this sense of being caught in a maze of events, perhaps inconsequential, and reveries, likely fateful ― in a sprawling house full of hidden recesses and secret passages and dark basements filled with secreted relics and not a few skeletons, like Cromwell’s Austin Friars ― is exactly what Dame Hilary wants her reader to feel. (She gives an account of her thoughts on these things in Reith Lectures, which I highly recommend.) But, for all the mastery with which it is delivered, and for all the depth of the thoughts ― to some of which I return below ―, it is sometimes too much.

But, as the story breaks out of the maze at last, in the last 150 or so pages, and speeds up to its inevitable conclusion on Tower Hill, its telling is at a level that few writers can even hope to ever achieve. The reader knows what is coming, of course: the fall, the Tower, the scaffold. Denied the possibility to surprise, Dame Hilary must entrance the reader; she sets herself a seemingly impossible task: how can you tell a man’s execution, especially when her writing, as always, is very much inside her character’s mind, this inimitable hybrid between a third- and a first-person narration that the readers of Wolf Hall and Bring Up the Bodies will remember? Well, you and I couldn’t, but Dame Hilary can. In the real Cromwell’s life much remains unknown, caught in the record only as a reflection or a shadow. For Dame Hilary’s readers, it will be impossible to imagine that events unfolded in a way different than the one she conjectures, or indeed that Cromwell’s thoughts were not those she imputes to him.

Let me say something about these thoughts, and others that Dame Hilary explores. I don’t imagine that she meant to write about our current moment in particular. For one thing that would be diminishing what is really a timeless literary achievement. For another, as brilliant as she is at imagining the past, I don’t suppose that Dame Hilary can see the future, and after all she worked on The Mirror and the Light a long time, starting when the world was still a different, and in some ways a more innocent place. So, to repeat, the book is no allegory for the present. Yet so much of it seems to be about 2020, not 1540.

Of course there are meditations on the law. Dame Hilary studied law, and her Cromwell is very much a lawyer. (So are the protagonists of her excellent early novel about the French revolution, A Place of Greater Safety ― Danton, Dumoulin, and Robespierre.) There is this, on retroactive law, and on due process more generally:

A prince cannot be impeded by temporal distinctions: past, present, future. Nor can he excuse the past, just for being over and done. He can’t say, ‘all water under the bridges’; the past is always trickling under the soil, a slow leak you can’t trace. Often, meaning is only revealed retrospectively. The will of God, for instance, is brought to light these days by more skilful translators. As for the future, the king’s desires move swiftly and the law must run to keep up. ‘Bear in mind his Majesty’s remarkable foresight, at the trial of the late queen. He knew the sentence before the verdict was in.’

And process is again all-important at the end, as Cromwell is arrested and charged with fanciful, made-up transgressions: “‘Valentines? Sorcerers? Any jury would laugh you out of court.’ But, he thinks, there will be no jury. There will be no trial. They will pass a bill to put an end to me. I cannot complain of the process. I have used it myself.”

In the end, Dame Hilary’s Cromwell becomes a sort of critical legal scholar:

Rats have eaten the laws of ancient times. They relish fish-glue and vellum; anything that was once alive, they will eat it, and then out of habit, they will eat what is dead; from the margins they chew their way in, to the secret history of England. It is the glory of the men who have worked with Cromwell that instead of merely cursing the vermin they have patched, they have mended, they have stretched a point to replace a gnawed vowel; they have been ready to substitute a digested phrase with a clause that will help the crown. But what has it availed? He has lived by the laws he has made and must be content to die by them. But the law is not an instrument to find out truth. It is there to create a fiction that will help us move past atrocious acts and face our future. It seems there is no mercy in this world, but a kind of haphazard justice: men pay for crimes, but not necessarily their own.

Perhaps what we have come to call the Rule of Law is better, then.

Beyond law, there are reflections on power ― princely power, of course, but I think we must ask how they apply to power exercised not only by monarchs but also by electorates or even by online mobs. In the very beginning, at the execution of Anne Boleyn, Cromwell turns on the Duke of Suffolk, who demands to know why he did not force Anne’s father to witness it. He insists that he must protect the King from being needlessly cruel: “[i]f you love the king … , pay some heed to his soul. One day he will stand before God and answer for every subject.” But can a man who uses and abuses the law as Dame Hilary’s Cromwell does truly say that he pays heed to the King’s soul? He does not seem to ask himself these questions, not until it is too late and he realizes that for “ten years I have had my soul flattened and pressed till it’s not the thickness of paper”. But we must.

The sovereign, perhaps, is not like the rest of us:

is a prince even human? If you add him up, does the total make a man? He is made of shards and broken fragments of the past, of prophecies and of the dreams of his ancestral line. The tides of history break inside him, their current threatens to carry him away. His blood is not his own, but ancient blood. His dreams are not his own, but the dreams of all England: the dark forest, deserted heath; the stir in the leaves, the dragon’s footprint; the hand breaking the waters of a lake. His forefathers interrupt his sleep to castigate, to warn, to shake their heads in mute disappointment.

An electorate, a people, is not human either. It too is all these things, perhaps; it too is haunted.

Against power, there is also disobedience, and revolt. The Pilgrimage of Grace is at least a better-sounding name than populism, but is there much difference ― in reality, or in how those in power think about these things? The rebels think, or those who write about them say they think, that

[t]here was a former age, it seems, when wives were chaste and pedlars honest, when roses bloomed at Christmas and every pot bubbled with fat self-renewing capons. If these times are not those times, who is to blame? Londoners, probably. Members of Parliament. Reforming bishops. People who use English to talk to God.

…

Their leaders tell them that Henry has made himself God. Now if a child falls sick between Truro and Newcastle, they lay it at the king’s door; if a well dries, if the butter spoils, if a bucket leaks: everything that is out of joint with them, from a fall of hailstones to a cricked neck, they blame on the court and council. Their grievances run like streams underground, welling up from the Scots border to Dover, till the whole land is flooded with nonsense.

Finally, a constant theme in The Mirror and the Light, and an especially relevant one just now, is what can be said. After the run-in with Suffolk, Cromwell wonders if he has gone too far in rebuking the duke, but wonders: “if you cannot speak truth at a beheading, when can you speak it?” He also tells his son, shortly thereafter, that “[i]t is not wrong to speak your mind. On selected occasions. They make it painful for you. But you must do it.” Yet as the story unfolds, the selection of the occasions grows ever stricter. He tells the King’s unloved, suspected daughter Mary “to compromise her conscience” to get back in his good graces. He knows that “of course she will despise herself afterwards. But that is the price. … [T]ime will ease the sting of it.” Dogma is uncertain and unsteady, but also deadly.

Corpus Christi is a miracle. It is a mystery. Once consecrated, the host contains your God, alive: the wine is his blood. You cannot hope to understand it but you must believe it. And if you fail to believe it you must keep quiet, because your failure can kill you.

Even the archbishop of Canterbury is afraid:

“[O]nce the bill is passed, none of us will preach on the Blessed Sacrament, its nature. We dare not. We would not know what it is safe to say, without being tripped by the law and cited for heresy.” This is what the king calls concord: an enforced silence.

Henry VIII has disciples in our own time, and people are afraid of them as the Bishop Robert Barnes was afraid of the enforcers of Henry’s shape-shifting orthodoxy: “It’s not his faith, but his temperament that will fail. He is not Luther. Here he stands: till Gardiner knocks him across the room.” Others too feel they “are living on borrowed time, in small rooms, a bag always packed, an ear always alert; … sleep[ing] lightly and some nights hardly at all.” In the end, Cromwell decides that he cannot speak the truth, certainly nothing like the whole truth, at his own turn on the block. For the sake of his son, his nephew, his friends, he speaks little, and says less.

A little earlier, as he awaits his execution, Cromwell imagines Heaven and Hell. “When he pictures Hell he can only think of a cold place, a wasteland, a wharf, a marsh, a landing stage; Walter” ― his abusive father ―

distantly bawling, then the bawling coming nearer. That is how it will be – not pain itself, but the constant apprehension of pain; the constant apprehension of fault, the knowledge that you are going to be punished for something you couldn’t help and didn’t even know was wrong; and the discord in Hell will be constant, repeating for ever and ever, a violent argument being carried on in the next room.

Sounds familiar, doesn’t it?

Anyway, read the book. Skip the middle 500 pages if you must, but do read it. You won’t be sorry.

Happy Canada Day!

The anniversary of an imperfect constitution drafted by imperfect men is well worth celebrating

Canada Day, like most other days it seems, comes at a bad time this year. A time when symbols of the history ― be they flags, monuments, names of buildings ― are objects of suspicion at best, and not infrequently unqualified vitriol, seems ill-suited to a celebration of what is now more than a sesquicentennial constitution. A constitution that is stubbornly monarchical in form, politically incorrect in wording, and dependent for its existence, livelihood, and amendment on old-fashioned procedures of parliamentary democracy rather than on heady revolutionary movements.

But we do not get to choose anniversaries, and perhaps this is a useful reminder that we do not get to choose everything, that there can be no such thing as a tabula rasa, and that demands for one can only be the products of ignorance or bad faith. This is not an apology for conservatism. As I have said before, I am no no conservative. Much in the world, and in Canada, should change. But the idea that everything can change, and that everything can be just as we ― whoever “we” are ― wish it to be, is unserious; indeed it is perhaps the nec plus ultra of solipsism.

The framers of our constitution understood this, and the constitution’s existence is proof of this, as of their wisdom and humility more generally. They were no doubt flawed in various ways, as men always were, still are, and ever will be. And in some ways we can, legitimately I hope, say that we are better than they. But we are certainly no better, on the whole, if we do not practice the virtues that were theirs: humility, as I have already said, and openness to compromise; magnanimity and willingness to live and let live; above all, perhaps, determination to hope for the future more than to dwell on the past.

Let George Brown’s words, spoken on February 8, 1865, during the Confederation debates, be our inspiration in this time of acute awareness of the imperfections of our institutions and the world around us:

No constitution ever framed was without defect; no act of human wisdom was ever free from imperfection; no amount of talent and wisdom and integrity combined in preparing such a scheme could have placed it beyond the reach of criticism. And the framers of this scheme had immense special difficulties to overcome. We had the prejudices of race and language and religion to deal with; and we had to encounter all the rivalries of trade and commerce, and all the jealousies of diversified local interests. To assert, then, that our scheme is without fault, would be folly.

It was necessarily the work of concession; not one of the thirty-three framers but had, on some points, to yield his opinions; and, for myself, I freely admit that I struggled earnestly, for days together, to have portions of the scheme amended. But, Mr. Speaker, admitting all this—admitting all the difficulties that beset us—admitting frankly that defects in the measure exist … I believe it will accomplish all, and more than all, that we, … ever hoped to see accomplished.

Canada itself stands as the greatest monument to these framers, and they could wish for no better. We are lucky to have it as their bequest. We can and must improve it, but today, of all days, we can and must simply be grateful for it. Happy Canada Day!

The Road to Serfdom at 75: Part II

Hayek’s proposals for resisting collectivism

In the last 10 days, I gave two talks ― one to the Runnymede Society chapter at the University of Victoria and one at the Université de Sherbrooke ― on Friedrich Hakey’s The Road to Serfdom. In yesterday’s post and in this one, I reproduce my notes for these talks. Yesterday’s post covered the context in which The Road to Serfdom was written and presented Hayek’s criticism of collectivism. This one reviews some of his proposed solutions. The page numbers refer to the 50th Anniversary Edition, which is the one I have in my possession.

What, then, is the alternative to collectivism? It is, naturally, individualism. Individualism, Hayek insists, is not selfishness. It is, rather, the “recognition of the individual as the ultimate judge of his ends, the belief that as far as possible his own views ought to govern his actions”. (66) The sovereignty of individual belief over individual action is, indeed, a burden as much as a right. Hayek reminds us “[t]hat life and health, beauty and virtue, honor and peace of mind, can often be preserved only at considerable material cost”, and “that we all are sometimes not prepared to make the material sacrifices necessary to protect those higher values”. (107) Individualism insists on “the right of choice, [which] inevitably also carries the risk and the responsibility of that right”. (112) But the alternative to making choices, however unpleasant, for ourselves is that others will make them for us.

Note that, from the insistence on the primacy of the individual follows naturally what Hayek calls “[t]he fundamental principle that in the ordering of our affairs we should make as much use as possible of the spontaneous forces of society, and resort as little as possible to coercion”. (21) Hayek is especially well known for his insistence on the importance of this principle in the economic realm, but it applies much more broadly, as we shall see. Between collectivism and individualism as fundamental organizing principles of society, between “the order governed by the impersonal discipline of the market or that directed by the will of a few individuals”, (219) Hayek sees no middle ground, no possibility of compromise. The methods of collectivism are such that individual liberty cannot be preserved once they are being thoroughly applied, regardless of the purpose to which they are put. From that, it follows “[t]hat democratic socialism, the great utopia of the last few generations, is not only unachievable, but that to strive for it produces something so utterly different that few of those who now wish it would be prepared to accept the consequences”. (36) It is the ruthless, rather than the sincere democrats, who are able and willing to impose their values on the rest of society.

So what is to be done to secure this fundamental principle, and the supremacy of the individual on which it rests? I will focus on Hayek’s suggestions in three areas: the law, not only because this is my area of expertise, but also because Hayek’s first degree was, in fact, in law, and he deserves to be much better appreciated than he is as a legal philosopher; the economy, because after all Hayek is usually thought of as an economist (though he was much more than that), and a Nobel Memorial Prize winning one at that; and the relationship between the individual and society, because, I think that this, if anything, even more important both to Hayek himself, and especially to us as readers in an age where the preoccupations of collectivism are, ostensibly, not only or even primarily, economic.

Let me begin, then, with the law. Hayek sees its function as that of “creating conditions under which the knowledge and initiative of individuals are given the best scope so that they can plan most successfully”. (40; emphasis Hayek’s.) A sound legal framework is what enables competition and markets to serve “as a means of co-ordinating human efforts” (41) and so to provide for the needs and wants of individuals. Hayek is no anarchist; he is not, like Thoreau, saying that that government is best which governs not at all. (Indeed, he claims, in The Road to Serfdom, that “[i]n no system that could be rationally defended would the state just do nothing. An effective competitive system needs an intelligently designed and continuously adjusted legal framework as much as any other.” (45) (In Law, Legislation and Liberty, Hayek’s views on the design of legal frameworks change quite dramatically.)

But government, if it is to respect the ability of individuals to be masters of their own lives, must not only create and sustain a legal framework, but also bind itself by rules. In other words―in words that are of central importance to Hayek―we need the Rule of Law. As Hayek defines this phrase, it “means that government in all its actions is bound by rules fixed and announced beforehand―rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of that knowledge”. (80) In this way, “the government is prevented from stultifying individual efforts by ad hoc action”. (81)

This means that the law must consist of “formal rules which do not aim at the wants and needs of particular people”, (81; emphasis Hayek’s) and are not meant to produce substantive justice, whether defined in terms of equality or of some conception of merit. An attempt to produce rules―whether laws or administrative rulings―aiming at modifying the lot of particular people means that the law “ceases to be a mere instrument to be used by the people and becomes instead an instrument used by the lawgiver upon the people and for his ends”. (85) Laws that are qualified “by reference to what is ‘fair’ or ‘reasonable’”, (86) which can only be applied on a case-by-case basis, are antithetical to the Rule of Law; they result in “increasing arbitrariness and uncertainty of, and consequent disrespect for, the law and the judicature, which in these circumstances could not but become an instrument of policy”. (87)

Relatedly, “the discretion left to the executive organs wielding coercive power should be reduced as much as possible”, (81) which has the added benefit of enabling democratic control over the exercise of this coercive power. Such control, Hayek argues, is only possible when the executive works towards ends determined by a democratic process―that is, ends on which political consensus can exist, rather than being manufactured by the executive itself―and in accordance with standards compliance with which can actually be assessed. In the absence of such standards, there is no Rule of Law, even if the executive is ostensibly authorized to act by vague and broad delegations of power. (91)

It is important to note that Hayek’s rejection of the pursuit of substantive equality by means of laws targeting particular groups or authorizing discretionary administrative decision-making does not proceed from a lack of interest in rights, or indeed equality. On the contrary, he endorses a substantive conception of the Rule of Law, which incorporates “limitations of the powers of legislation [that] imply the recognition of the inalienable right of the individual”. (93) He also warns that state control of the economy will be used “to pursue a policy of ruthless discrimination against national minorities” (96) or against otherwise unpopular groups or persons.

This brings me to the realm of economics. The Road to Serfdom emphasizes the importance of competition between producers―including both firms and workers. Competition is preferable to allocation of resources according to some pre-defined plan, or to the views of government decision-maker, “not only because it is in most circumstances the most efficient method known but even more because it is the only method by which our activities can be adjusted to each other without coercive or arbitrary intervention of authority”. (41) The world is so complex that no planner, whether an individual or a government agency, can embrace the whole picture of the resources available to a society, the needs and desires of individuals, the ideas they are generating.

Being left to pursue their interests and opportunities within a general framework of rules, individuals and firms will create more, not only in terms of material wealth, but also of innovation and opportunity, than if they worked at the direction of government. A bureaucracy attempting to direct them simply could not anticipate what possibilities might arise, and what prospects its orders might foreclose. It is worth pointing out that Hayek sees a role for regulation, whether to protect the rights of workers or even the environment. At least in The Road to Serfdom―his views on this become more uncompromising later―Hayek claims that “preservation of competition [is not] incompatible with an extensive system of social services―so long as the organization of these services is not designed in such a way as to make competition ineffective over wide fields”, (43) and they are, instead “provided for all outside of and supplementary to the market system”. (133)

On the other side―as consumers―a competitive economy leaves us choices that regulation or government control would take away. Hayek explains that “[o]ur freedom of choice in a competitive society rests on the fact that, if one person refuses to satisfy our wishes, we can turn to another. But if we face a monopolist we are at his mercy. And an authority directing the whole economic system would be the most powerful monopolist conceivable.” (102) While the market does not always provide us with as many opportunities as we would like, it at least leave us the choice of how to direct our limited resources, instead of leaving us dependent on others’ views “of what we ought to like or dislike” (103) or how we ought to value the different aims that we would like to pursue. (99) The market does not distribute wealth and resources “according to some absolute and universal standard of right”―which in any case does not exist―, but nor does it make distribution subject to “the will of a few persons”. (112) In a market economy, “who is to get what … depends at least partly on the ability and enterprise of the people concerned and partly on unforeseeable circumstances”. (112-113)

I turn, finally, to the question of the relationship of the free individual to a free polity. The commitment to individualism imposes significant burdens on both―or rather, on both the individual as a private agent and on the same individual as a citizen and member of a political community.

In politics, we must learn to recognize the reality of the constraints and limitations within which we make our choices: in particular, of economic constraints. We must accept that they are not the product of some sinister will, but of forces no less real for being impersonal. Hayek explains and warns that

[a] complex civilization like ours is necessarily based on the individual’s adjusting himself to changes whose cause and nature he cannot understand: why he should have more or less, why he should have to move to another occupation, why some things he wants should become more difficult to get than others, will always be connected with such a multitude of circumstances that no single mind will be able to grasp them; or, even worse, those affected will put all the blame on an obvious immediate and avoidable cause, while the more complex interrelationships which determine the change remain inevitably hidden from them. (223)

We must understand that while “[i]t may sound noble to say, ‘Damn economics, let us build up a decent world’”, this “is, in fact, merely irresponsible”. (230) The attempt to build up a decent world risks empowering the demagogues offering easy solutions that solve nothing, and destroy what we already have.

To resist them, we need also to accept that ends do not justify all means; that collectivist and a fortiori dictatorial instruments cannot be put in the service of the right ideals, or entrusted to the right people, without either corrupting them or being seized by the more ruthless and corrupt; that “power itself” is “the archdevil”, (159) and that power concentrated in the hands of the state “is … infinitely heightened” (159) in comparison with that wielded by private actors. Once again, the echoes of The Lord of Rings are unmistakable.

We need, moreover, to firmly reject “the presumption of any group of people to claim the right to determine what people ought to think or believe”. (180) Perhaps most controversially for our time, Hayek cautions against a loss of “belief in Western civilization” and “a readiness to break all cultural ties with the past and to stake everything on the success of a particular experiment”. (203) (It would perhaps not be superfluous to note that Hayek would later write an essay called “Why I Am Not a Conservative”; he always considered himself a liberal―in the European, not the American, sense of the word.)

Last but not least, we ought to remember that morality is not measured by the intensity of our “indignation about the inequities of the existing social order” (230) but “by standards [of] individual conduct, and on the seriousness with which we uphold moral principles against the expediencies and exigencies of social machinery”. (231) We are acting morally, in other words, not when we are engaged in virtue-signalling or being “unselfish at someone else’s expense”, or indeed “being unselfish if we have no choice”, (231) but when we choose to put our own self-interest on the line for our principles. On this point, it is worth emphasizing that voting, in particular, is no test of individual morality, since it requires no “sacrifice of those of [those] values [one] rates lower to those [one] puts higher”. (233)

It is in our private conduct that we ought to be unselfish, concerned with equality, and generally do what we think is right. We must recall, Hayek says, that “[r]esponsibility, not to a superior, but to one’s conscience, the awareness of a duty not exacted by compulsion, the necessity to decide which of the things one values are to be sacrificed to others, and to bear the consequences of one’s own decision, are the very essence of any morals which deserve the name”. (231-32) We ought also to practice actively those “individualist virtues” to which I already referred: willingness to stand up for our opinions also ability to respect for those who disagree with us; magnanimity not to punch down and courage not to kiss up; good humour and presumption of good faith. We need, in other―Abraham Lincoln’s―words, to act “with malice toward none, with charity for all, with firmness in the right as God gives us to see the right”. Importantly, Hayek reminds us that “these individualist virtues are at the same time eminently social virtues”, (163) in that they make a society where they are practiced a much more pleasant place to live than one where they are forgotten.

Firmness in the right as we are given to see the right is perhaps an especially important theme for Hayek, though unlike Lincoln, he writes of individual conscience as what gives us to see the right. He insists on the importance of “readiness to do what one thinks right … at the sacrifice of one’s own desires and perhaps in the face of hostile public opinion”, (232) “to back one’s own conviction against a majority”. (233) Related to this is the imperative to hold on to the “old meaning” of the word “truth” as “something to be found, with the individual conscience as the sole arbiter of whether in any particular instance the evidence (or the standing of those proclaiming it) warrants a belief”, (178-79) and not whatever the authorities want us to believe for the sake of maintaining social cohesion.

As an academic, I especially want to highlight the need to stand up to the tendency to put “the disciplines dealing directly with human affairs and therefore most immediately affecting political views, such as history, law, or economics”, in the service of “the vindication of the official views” rather than a search for truth. (176) We must not allow law schools, or history departments, to be made into “factories of the official myths which the rulers use to guide the minds and wills of their subjects”. (176) As Hayek wrote all these years ago, “contempt for intellectual liberty is not a thing which arises only once the totalitarian system is established but one which can be found everywhere among intellectuals who have embraced a collectivist faith”. (179) Runnymede is fighting the good fight in opposition to this contempt.

Let me conclude with a warning and an exhortation. The warning is that reading The Road to Serfdom will not fill you with joy. It is dispiriting to see just how much Hayek’s warnings about the dangers of collectivism are still applicable today, three quarters of a century after he wrote. It would be much easier to think of whatever problems we are facing in our time as temporary aberrations rather than as avatars of a long, perhaps a permanent, dark streak in human nature, which is what their persistence suggests they are.

But the exhortation is to pick up The Road to Serfdom regardless and, having read it, to do what you can to push back against the trends that it describes. As Hayek says, “[i]t is because nearly everybody wants it that we are moving in this direction. There are no objective facts which make it inevitable.” (7) As Gandalf points out in The Lord of the Rings, “all who live to see [evil] times” wish them away, “[b]ut that is not for them to decide. All we have to decide is what to do with the time that is given us.”

The Road to Serfdom at 75: Part I

An appreciation of a life-changing book

In the last 10 days, I gave two talks ― one to the Runnymede Society chapter at the University of Victoria and one at the Université de Sherbrooke ― on Friedrich Hakey’s The Road to Serfdom. In this post and one to follow tomorrow, I reproduce my notes for these talks. The page numbers refer to the 50th Anniversary Edition, which is the one I have in my possession.

Why is F.A. Hayek’s The Road to Serfdom still relevant—and not merely relevant, but compelling—75 years after its publication? It is not obvious that this should be so. It is a book written in a particular historical context, and in response to the intellectual climate of its day. It is a polemic; one is almost tempted to say, a pamphlet―and indeed Hayek himself, in a 1976 preface, refers to The Road to Serfdom in exactly this way, “a pamphlet for the time”. In this, it is unlike Hayek’s more general later works, The Constitution of Liberty and Law, Legislation and Liberty.

And yet, while I wouldn’t say the two later books, especially Constitution, are obscure, it is still The Road to Serfdom that is the iconic one. It has changed the trajectory of my own intellectual life when I read it, probably in third year of law school. (It is one of those things that I find it difficult to remember not knowing, so I don’t recall the exact time or the reasons that made me read it.) And it has had a similar effect on any number of people since its publication. Clearly, it is rather more than a pamphlet, or even just a polemic. It might have began as a pamphlet for the time, but it is, as Milton Friedman described it in a different preface, timeless.

I will venture an explanation for The Road to Serfdom ongoing appeal. I will argue that it targets an evil that is enduring, and that we must confront today, with (almost) as much urgency as Hayek had to when he was writing. The defeat of the particular shapes that this evil took then—a defeat that looks much more provisional and uncertain than it did when I first read the book a dozen years ago—was important in its time. But the evil itself was not put to rest, and perhaps cannot be. It revives, shifts shapes, and must be resisted and repelled again and again, in the time that is given us.

(The reader may have noticed me echoing, and in the last sentence directly quoting from The Lord of the Rings. This is not an accident. I think there are echoes of the Lord of the Rings in The Road to Serfdom, or perhaps I should say it the other way around, since the Road to Serfdom was published much before The Lord of the Rings finally was. I believe that this is not at all surprising, since they were being written at the same time, and their authors saw—and in their very different ways responded—to much the same events, not just those of the then-ongoing war but also those of the previous one, of which both were veterans.)

So let me begin, very briefly, with the immediate context in which Hayek was writing, before moving on to the more timeless elements in The Road to Serfdom. The book was published in 1944, while World War II was ongoing, although it looks forward to the aftermath of an Allied victory. It was written, therefore, while Nazism was at or just past the peak of its power, while Soviet communism was already immensely powerful, and growing more so by the day. But the Western response to the two totalitarian ideologies was strikingly different. Even before war broke out, socialism and communism were prestigious in the way Nazism never quite was in the West; after 1941, communism was the ideology of an ally in that war. And, of course, the Soviet regime had long presented itself as the most steadfast opponent of Nazism, while the Nazis themselves employed much anti-Communist rhetoric (recall that the alliance of Germany, Italy, and Japan was officially called the “Anti-Comintern Pact”). The fashionable view was that fascism was the ultimate, and perhaps inevitable, development of unbridled capitalism, and that embracing socialism or communism was the only way to forestall the advent of fascism.

Hayek saw things differently. For him, Nazism and Socialism were denominations in the same totalitarian church, whose adherents had a great deal in common even if they professed unfailing enmity. (The enmity was, in any case, less constant than advertised: recall Stalin’s pact with Hitler in 1939, leading to their joint invasion and partition of Poland, and much of Eastern Europe.) What Nazism and Socialism had in common was collectivism. Both held that society had to be organized around the supposed interests of particular groups of people, and devoted single-mindedly to the pursuit of some alleged common purpose. Both rejected liberalism and individualism. Nazism simply defined the group that was supposed to define the purposes of political action differently, along racial rather than class lines. Despite this, it had, as the title of one of the chapters of The Road to Serfdom had it, “socialist roots”. Hence Hayek’s dedication of the book “to socialists of all parties”, on the right as well as on the left.

This brings me back to the timeless evil which The Road to Serfdom responds to. On the surface, significant parts of the book rebut arguments that were prevalent in the years preceding its publication about the desirability and feasibility of Soviet-style central economic planning and government ownership of the means of production. And of course advocacy of such policies is now unusual, although I wonder whether the ground is shifting even on this, with the popularity of Bernie Sanders and, even more so, Elizabeth Warren, whose plans for telling companies exactly how to behave, what to sell, and for whose benefit, go nearer the central planning of yore than anything a serious candidate for office has proposed in decades.

But these are issues primarily of form. Look below the surface, and the impulse toward collectivism is no weaker now. What has changed is not its origin or orientation, but its direction. 21^st-century collectivists are not only preoccupied with economic inequality, on which they forebears mostly (but not exclusively) focused in Hayek’s time, but (also) with the environment and, especially, with identity―whether it is the identity of groups purportedly defined by gender, race, sexuality, etc., or that of nations.

What does Hayek mean by collectivism, and why is it, after all, such a bad thing? Collectivism is the organization of society by the state according to a single blueprint, such that persons and groups, insofar as they are not obliterated in the process, are entirely subordinated to it and made to serve its purposes instead of pursuing their own. The attraction of collectivism is that it seems to make possible the realization of purposes on which we might all agree―say, racial or gender equality, or putting an end to global warming, or perhaps something more diffuse, such as simply “the public welfare”―by directing all, or at least some very significant part, of society’s efforts to them.

What’s the problem with this? Collectivists tend to forget that purposes that all appear desirable in the abstract can be in conflict, and that sometimes “any one of them can be achieved only at the sacrifice of others”. (59) If the efforts of society are to be centrally directed by government, a hierarchy of aims will need to be established to determine which will yield to others. Yet where is this hierarchy to come from? Comprehensive agreement on a scale of values does not exist in a free society, where individuals have their own moral scales. The hierarchy of aims must, and can only be, generated by the government; and not by a democratic process, which is bound to reflect the disagreements that exist in society. Indeed, it is precisely the failure of democracy to generate all-encompassing agreement that “makes action for action’s sake the goal. It is then the man or the party who seems strong and resolute enough ‘to get things done’ who exercises the greatest appeal”, (150) and is set up in a position of unaccountable technocrat or dictator, which amounts to more or less the same thing.

As for individuals, if they cannot be expected to agree on a common hierarchy of aims, they must still be made to agree to it. An official dogma, extending not only to values but even to “views about the facts and possibilities on which the particular measures are based” (170), must be spread, by means of relentless propaganda, by twisting the meaning of words, especially of words describing moral and political values, and by resorting to censorship and ultimately force, since dissent compromises the mobilization of society toward the chosen aims. Instead of truth, “[t]he probable effect on the people’s loyalty to the system becomes the only criterion for deciding whether a particular piece of information is to be published or suppressed”. (175-76) And people, like ideas, “more than ever become a mere means, to be used by the authority in the service of such abstractions as the ‘social welfare’ or the ‘good of the community’”. (106) Moreover,

[i]f the ‘community’ or the state are prior to the individual, if they have ends of their own independent of and superior to those of the individuals, only those individuals who work for the same ends can be regarded as members of the community. It is a necessary consequence of this view that a person is respected only as a member of the group, that is, only if and in so far as he works for the recognized common ends, and that he derives his whole dignity only from this membership and not merely from being man. (156)

Note, too, that aims do not exist in the abstract; they are those of individuals, sometimes of groups (that is, of individuals who agree). A hierarchy of aims imposed―ultimately at gunpoint―by the government is also a hierarchy of people. A collectivist government will choose whose interests to favour, and whose to subordinate. It might say it aims at fairness, but it will apply a particular standard of fairness: its own, not one of society at large, since the latter does not actually exist. Indeed,

it is easier for people to agree on a negative program―on the hatred of an enemy, on the envy of those better off―than on any positive task. The contrast between the ‘we’ and the ‘they’, the common fight against those outside the group, seems to be an essential ingredient in any creed which will solidly knit together a group for common action. (153)

Collectivism, whatever its initial aims, tends toward factionalism and nationalism, and this tendency is only exacerbated by “that glorification of power … which profoundly affects the ethical views of all collectivists”. (158)

Ultimately, collectivism is destructive not only of freedom―both political and personal―but of morality itself. A collectivist system “does not leave the individual conscience free to apply its own rules and does not even know any general rules which the individual is required or allowed to observe in all circumstances”, (161) because the needs of the collective―as interpreted, of course, by the political leaders or technocrats purporting to speak on its behalf―are always regarded as more important than individual scruples. Collectivists

lack … the individualist virtues of tolerance and respect for other individuals and their opinions, of independence of mind and … uprightness of character and readiness to defend one’s own convictions against a superior … , of consideration for the weak and infirm, and of that healthy contempt and dislike of power which only an old tradition of personal liberty creates. Deficient they seem also in most of those little yet so important qualities which facilitate the intercourse between men in a free society: kindliness and a sense of humor, personal modesty, and respect for the privacy and belief in the good intentions of one’s neighbor. (163)

In The Road to Serfdom, this is a description of Germans, whom Hayek regards as epitomizing collectivism. But it applies, in our day, just as well to “social justice warriors” as to the supporters of Donald Trump. And it applies with double force to those in positions of political power in either movement, who more than all the others are required to demonstrate “readiness [to] conform[] to an ever changing set of doctrines” laid down by the leader in the pursuit of his chosen goals (or, in a development Hayek did not anticipate, emerged more or less spontaneously in activist circles), whatever these doctrines may be, and to enforce such conformity on those over whom they rule.

Part II follows.

In the Beginning

Learning about, and from, Pierre Trudeau’s 1968 proposal for what would become the Canadian Charter

Canadian judges and lawyers, including of the academic variety, tend not to think very highly of our constitutional history. This is, in part, because we ― and I must include myself in this ― do not know it as well as we should. There is an unhealthy feedback loop at work: a predisposition to be dismissive of the past fosters ignorance about it, which in turn makes it easier to be dismissive. The good news is that, once one starts looking into this history about which we have so much to find out, it is easy to find fascinating stories to learn, and to learn from.

Case in point: the proposal for “A Canadian Charter of Human Rights“, put forward in early 1968 by then-Justice Minister Pierre Trudeau, made available by the wonderful resource that is the Primary Documents project. I have to admit: I didn’t really know anything about this text before coming across it recently. But it is, surely, of considerable interest, if we accept that ― like every other rights-protecting text from the Magna Carta onwards ― the Canadian Charter of Rights and Freedoms, the direct descendant of the 1968 proposal, isn’t just a shadow in Plato’s cave, but a document that was written and enacted by particular people, at a particular time, in a particular place. And in addition to both the interest that I think this text deserves and the way in which it illustrates the value of constitutional history more broadly, it also sheds some light on ongoing debates.

Trudeau began his introductory chapter by claiming that “Interest in human rights is as old as civilization itself.” (9) (This, I am afraid, is reminiscent of bad student work.) For a long time, he wrote,

these rights were known as ‘natural’ rights; rights to which all men were entitled because they are endowed with a moral and rational nature. … These natural rights were the origins of the western world’s more modern concepts of individual freedom and equality. (9)

Trudeau appealed to Cicero and Aquinas, as well as Locke and Rousseau, and quotes at some length from the Declaration of Independence. I’m not sure that his presentation of the concept of natural rights is fully accurate, but his reliance on these authorities as the starting point of an argument for constitutional protection of human rights is relevant to the recent debates about the nature and origin of the rights protected by the Charter.

Another point which has been the subject of recent discussion that Trudeau’s introduction addressed was that of Parliamentary supremacy. Trudeau was quite clear that his proposal involved “some restriction on the theory of legislative supremacy”, although this theory, he said, “is seldom pressed to its full extent”. (11) Equally clear, as will appear below, was his understanding that the courts would have the last word on the meaning and import of the rights guarantees that he proposed adding to the Constitution. The point of the exercise was to secure “the fundamental freedoms of the individual from interference, whether federal or provincial”, and also to “establish that all Canadians, in every part of Canada, have equal rights”. (11)

This theme of inviting judicial enforcement of rights’ guarantees is further developed in the next chapter. Trudeau discusses the Canadian Bill of Rights, and finds it wanting because it is “not a constitutional limitation on Parliament, only an influence”, (13) and has not been vigorously enforced by the courts. Even if it had been, it would, like provincial legislation protecting human rights, be subject to repeal through the ordinary legislative process. In short,

a constitutionally entrenched Bill of Rights is required which will declare invalid any existing or future statute in conflict with it. Language in this form would possess a degree of permanence and would over-ride even unambiguous legislation purporting to violate the protected rights. (14)

The next Chapter outlines the contents of the proposed “charter of human rights”. It explains how existing law deals with each right it proposes to protect ― what the existing protections, if any, are; how they are limited; and also how legislative powers affecting the right are distributed between Parliament and the provincial legislatures. In some cases at least, there is thought given to the wording of future constitutional clauses ― for example, “whether freedom of expression is best guaranteed in simple terms without qualification, or whether the limitations of this freedom ought to be specified” (16) ― which suggests that the Charter‘s text is not just a collection of “majestic generalities” that could just as easily have been cast in very different, if equally general, terms. And there is a great deal of speculation about the way in which the courts will treat various rights, if they are constitutionally entrenched. This speculation is informed by references to Canadian case law, where it exists, as well precedents from the United States. There are also occasional references to the European Convention on Human Rights.

Some future controversies are already foreshadowed in Trudeau’s discussion. For example, the section on the freedom of religion highlights “the imposition of Sunday closing of businesses on Christians and non-Christians alike” ― which would, indeed, produce one of the first Supreme Court decisions based on the Charter, R v Big M Drug Mart Ltd, [1985] 1 SCR 295. For its part, the section on “life, liberty and property” ― note that, as Dwight Newman and Lorelle Binnion have pointed out, Trudeau was quite keen on entrenching some form of constitutional protection for property rights ― anticipates the issue in another early Charter case, Re BC Motor Vehicle Act, [1985] 2 SCR 486 about whether substantive or only procedural constraints exist on deprivations of “life, liberty and the security of the person”. In 1968, Trudeau thought, based on the jurisprudence under the “due process clause” of the Fifth and Fourteenth Amendments to the U.S. Constitution

that the guarantee [of due process] as applied to protection of “life” and personal “liberty” has been generally satisfactory, whereas substantive due process as applied to “liberty” of contract and to “property” has created the most controversy. It might therefore be possible to apply the due process guarantee only to “life”, personal “liberty” and “security of the person”. The specific guarantees of procedural fairness set out elsewhere in the bill would continue to apply to any interference with contracts or property. In this fashion the possibility of any substantive “due process” problems would be avoided. (20)

Of course, the example of property rights shows that what was ultimately enacted in 1982 was not always what Trudeau had wanted in 1968. Still, given the widespread conviction that the Supreme Court’s holding in the Motor Vehicle Act Reference that the “principles of fundamental justice” which must be respected when depriving a person of “life, liberty or security of the person” were not only procedural but substantive too went against with the wishes and expectations of the Charter‘s framers, it is interesting to note that the Supreme Court’s interpretation is actually quite consistent with Trudeau’s original proposal.

There are instances, admittedly, where Trudeau’s powers of prediction failed. For example, he wrote that “a court would likely be extremely reluctant to substitute its opinion of a proper punishment for that of the legislature”. (21) Stephen Harper, not to mention Justice François Huot of the Québec Superior Court, might have a thing or two to say about that. Trudeau thought that constitutionalizing the presumption of innocence would not mean “that the various federal and provincial penal statutes which contain ‘reverse onus’ clauses … will be declared unconstitutional”. But of course it was just such statute that was in fact declared unconstitutional in R v Oakes, [1986] 1 SCR 103.

And property rights weren’t the only ones that he thought important but the Charter ended up not protecting: so was the right to a fair hearing in civil and administrative proceedings. On the other hand, some rights that Trudeau did not think advisable to incorporate in the constitution were read into it by judicial fiat. Thus, notably, Trudeau listed “the right to form and join trade unions” along with other rights “which seek to ensure some advantage to the individual and which require positive action by the state”, (27) and which should not be protected by his proposed “charter of human rights”. That is because “[i]t might take considerable time to reach agreement on the rights [in this category] to be guaranteed and on the feasibility of implementation”. (27) Someone should have told the Supreme Court before it decided in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 391, that a right to collective bargaining would have been “within the contemplation of the framers of the Charter“. [78]

The very brief final chapter in Trudeau’s text suggests that egalitarian and linguistic rights might have to be implemented gradually, after political and legal rights have been protected, and muses on the advisability of special provisions for wartime and other emergencies. Section 32(2) of the Charter, which provided that equality rights would only come into effect three years after the rest of the Charter, seems to reflect the former concern, as does, in part, section 59 of the Constitution Act, 1982 which requires Québec’s consent ― which has never been given ― for the application of section 23(1)(a) to the province. No special provision has been made specifically to accommodate the concern about emergencies, though Trudeau actually contemplated the possibility of leaving it to “the courts to determine what limitations are made necessary in times of crisis”. (30)

In case I have not made this sufficiently clear already: these are only one man’s ideas about what a future constitutional charter of rights for Canada should look like and accomplish. To be sure, the man was influential ― indeed his influence was decisive in Canada having a constitutional charter of rights 14 years later ― and the ideas were given the stamp of approval by the government of which he was part. But many years would pass, and many governments would change, before these ideas would become law, and then, as noted above, only in a much modified form.

It is the law that was enacted that binds Canadian governments, and Canadian courts. As I have unfortunately had occasion to note here, Pierre Trudeau’s political programme is not the appropriate object of constitutional interpretation, “and the courts’ duty is to apply the Charter as it has been enacted, and not to expand it forever until the day the just society arrives”. For the better and for the worse ― often much for the worse ― the ideas of other political actors and members of the civil society helped shape Charter as it developed from a political proposal to a constitutional law.

Nevertheless, the original proposal of which the Charter is the consequence deserves our attention. Although in no way binding or definitive, it sheds some light on important controversies surrounding the Charter, some of which are ongoing to this day ― in part, I would argue, because we have not paid sufficient attention to history. Studying this history is a way not only of indulging our curiosity ― though there’s nothing wrong with that ― but also of reminding ourselves that the Charter, and our constitution more broadly, was the product of specific circumstances and ideas. For all their flaws, these circumstances and ideas were more interesting and praiseworthy than those who denigrate them in order to make the constitution that they produced into a blank canvas onto which their own preferences can be transposed care to admit. The constitution is neither such a blank canvas nor a projection from a Platonic world of forms that must be interpreted by philosopher kings in judicial robes for our edification and government. It is a law, and must be interpreted as such.