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!

A Constitutional Moment

Confederation as a constitutional moment, in George Brown’s words

I take a break from talking about the Saskatchewan Catholic school funding case, and turn from dealing with unanticipated consequences of compromises struck at Confederation to the time when these compromises were being made. It is common enough in Canada to denigrate these compromises, a tendency encapsulated in the former Justice Binnie’s comment, his exit interview with the Globe and Mail, that we couldn’t possibly be originalists because

[w]e don’t have a Jefferson or an Alexander Hamilton or a Benjamin Franklin, for us to read their views on what the Constitution does or doesn’t mean. At the Quebec conference, Sir John A. Macdonald’s most memorable reflection was: “Too much whisky is just enough.” That was the guidance we got as to our Constitution.

The Quebec conference was held behind closed doors, so we don’t actually know what memorable reflections were made there. But we have plenty of other sources to consult, if we take an interest in the thought of the Fathers of Confederation. (Many of these sources are now easily available on the Macdonald Laurier Institute’s Confederation Project’s website, thanks to the hard work of my friend Alastair Gillespie.)

I think it’s fair to say that, on the whole, the Fathers of Confederation did not quite have the philosophical depth or literary talent of Alexander Hamilton and James Madison. But that is a rather absurd standard by which to measure any group of statesmen. Considered in their own right, they were much more serious thinkers, not to mention better expositors of their ideas, than they are usually given credit for. Their constitutional endeavours involved a great deal of compromise and concession, as they openly acknowledged (in contrast, perhaps, to the self-assured Publius). But if did not meditate on the meaning of separation of powers, or advance theories of federalism, or leave cryptic thoughts on judicial review for us to decipher, they carried out a practical demonstration of how to solve constitutional and political problems that was, in its own way, no less impressive ― and has arguably better stood the test of time, for now anyway.

As Mr. Gillespie’s work shows, the accomplishments of Confederation are perhaps best appreciated if presented in the words of those who made them possible. So, to finally get to the point of this post, here is an excerpt from George Brown’s speech during the “Confederation Debates”, during which the legislature of the then-Province of Canada considered whether to support the plan developed at the Quebec Conference. Mr. Gillespie’s paper on Brown does not quote it, but it made an impression on me when I read it recently, and I wanted to share it. Having noted that the candidates supporting the confederation plan have been receiving wide popular support in recent elections, Brown goes on to argue that people outside Canada ― which is to say, mostly, in the United Kigdom and in the United States ― have been noticing too:

And well, Mr. Speaker, might our present attitude in Canada arrest the earnest attention of other countries. Here is a people composed of two distinct races, speaking different languages, with religious and social and municipal and educational institutions totally different; with sectional hostilities of such a character as to render government for many years well-nigh impossible; with a Constitution so unjust in the view of one section as to justify any resort to enforce a remedy. And yet, sir, here we sit, patiently and temperately discussing how these great evils and hostilities may justly and amicably be swept away for ever.

We are endeavouring to adjust harmoniously greater difficulties than have plunged other countries into all the horrors of civil war. We are striving to do peacefully and satisfactorily what Holland and Belgium, after years of strife, were unable to accomplish. We are seeking by calm discussion to settle questions that Austria and Hungary, that Denmark and Germany, that Russia and Poland, could only crush by the iron heel of armed force. We are seeking to do without foreign intervention that which deluged in blood the sunny plains of Italy.

We are striving to settle for ever issues hardly less momentous than those that have rent the neighbouring republic and are now exposing it to all the horrors of civil war. Have we not then, Mr. Speaker, great cause of thankfulness that we have found a better way for the solution of our troubles than that which has entailed on other countries such deplorable results?

Now the last paragraph strikes me as an exaggeration. Were the differences between Upper and Lower Canada, British and French Canadians, Protestants and Catholics, truly comparable the conflict over slavery that caused the American Civil War? Brown might have been afflicted with the same blindness about the nature of that war that made Lord Acton, the great liberal, support the South in the name of preserving federalism. But he was also in a self-congratulatory mood (and readers of Mr. Gillespie’s paper will understand why Brown had cause for self-congratulation just then), and no doubt a boastful one, as any politician trying to sell others on his dearly held idea.

Yet despite his rhetorical excess, Brown was fundamentally right. It is true that the differences of religion, to say nothing of the forces of nationalism, had ― and have since he spoke ― often led to hatred, to open conflict, to outright war. The Fathers of Confederation found a way, not to sweep them away for ever, admittedly, but to create a constitutional framework within which opposing forces could be accommodated, and indeed made to work together, in a way that not only kept them at peace, but created one of the most successful polities of the last century and a half.

Contrary to what the denigrators like to say, the mid-1860s (and perhaps the longer period from the late 1850s to the mid-1870s) were a true “constitutional moment” in Canada. It deserves our respect, and our attention. We need not be uncritical of those who made this moment possible. But we profit, to this day, from their practical wisdom and political talents. We should not forget that.

Arguing against Originalism Badly

Noura Karazivan’s flawed argument against using originalism to understand constitutional structure

Noura Karazivan has recently published an article called “Constitutional Structure and Original Intent: A Canadian Perspective” in the University of Illinois Law Review. Prof. Karazivan raises interesting questions: what is, and what should be, the mix of originalism and living constitutionalism in the Supreme Court’s treatment of constitutional structure ― understood as the set of institutions that make up Canada’s government, and the relations among them. Unfortunately, prof. Karazivan’s argument suffers from her failure to engage seriously with contemporary originalist thought, or indeed to take note of recent work exploring it in the Canadian context, and her answer to the normative question, which decisively favours living constitutionalism, is unsatisfactory.

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Prof. Karazivan’s starting point is an orthodox proposition: “[i]n Canadian constitutional law, there is no doubt that a broad, purposive, and progressive approach”, described by the famous “living tree” metaphor, “is preferred” for the interpretation of any and all constitutional provisions, (630) though she acknowledges that the Supreme Court uses other interpretive methods too. In addition to being used in the interpretation of constitutional text, living constitutionalism has played a crucial role in a number of decisions concerning constitutional structure. For example, in l’Affaire Nadon, Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21, [2014] 1 SCR 433, the Court’s “conclusion would probably have been different” had it not engaged in “actualizing” its place in the constitutional structure, and only looked “its role in 1875”. (648)

Yet in a couple of recent decisions, says Prof. Karazivan, the Court adopted a more originalist approach to constitutional structure, rather than the evolutionist one that it normally favours. Prof. Karazivan focuses on Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, but also mentions Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31. In the former, “the Court greatly relied on the intent of the 1867 framers”, (646) who wished the Upper House to supply “sober second thought”. The Court disregarded the practice of partisan appointments to the Senate, the Senate’s contemporary role, and even “the impact of the enactment of the Constitution Act, 1982”, (647) which arguably transferred the role of protector of constitutional rights from the Senate to the judiciary. Meanwhile, in Trial Lawyers, the superior courts’ historic dispute-settling role was crucial to the decision.

Prof. Karazivan argues that the Supreme Court was wrong to resort to originalism in these decisions. She gives four reasons. First, she takes Re B.C. Motor Vehicle Act, [1985] 2 SCR 486 to stand for the proposition that the judiciary is not bound by the intent of constitutional framers. Second, originalism can make no democratic claim in Canada, since the Constitution Act, 1867 was the work of “a group of white men, mostly Parliamentarians, concerned with the preservation of British institutions on Canadian soil”, while “[t]he constitutional negotiations in 1982 were even less ‘democratic'”. (651; square quotes in the original) In short, “Canada does not have a great constitutional moment”. (651) Third, the Canadian constitution is simply too rigid for the courts not to update it from time to time. Finally, a “living tree” approach to interpretation yields a fuller understanding of both the constitution as a whole and its various components, as well as being “in line with Canadian constitutional structure and tradition”. (654)

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As I said at the outset, this is unconvincing. Prof. Karazivan repeats pieties about the superiority of living constitutionalism to originalism without understanding what originalism actually is. Although she refers, in passing, to the distinction between originalist interpretation that seeks the intent of constitutional framers and that which centres on the constitution’s original public meaning, her article focuses on original intent ― which relatively few contemporary originalists are still committed to. Prof. Karazivan also enlists a number of cases, such as the BC Motor Vehicle Act Reference and Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 SCR 669, in support of the proposition that living constitutionalism is the dominant approach to interpretation in Canada, while originalism has been rejected. Yet Benjamin Oliphant and I have shown that not only do these cases not support the claim of a wholesale rejection of originalism, but they are arguably (in the case of the BC Motor Vehicle Act Reference) or quite clearly (in the case of Employment Insurance Reference) consistent with public meaning originalism.

More broadly, we have also shown that the Supreme Court has never squarely rejected the more plausible forms of originalism, and indeed that various forms of originalist reasoning make frequent, if erratic, appearances in the Court’s reasoning. In particular, as both we and J. Gareth Morley and Sébastien Grammond have observed, originalist reasoning features heavily not only in the Senate Reform Reference, which prof. Karazivan decries, but also in the Nadon Reference, which she commends. Mr. Oliphant and I have also pointed out that cases on the jurisdiction of superior courts have had an originalist bent well before Trial Lawyers. In short, at the level of description, prof. Karazivan’s story, in which a largely living constitutionalist Supreme Court issued a couple of aberrant originalist decisions is much too simple.

Prof. Karazivan’s normative argument is even weaker. Her appeal to the authority of Justice Lamer’s opinion in the BC Motor Vehicle Act Reference has to be set against not only the arguable  consistency of this opinion with public meaning originalism, but also its author’s resort to more explicitly originalist reasoning elsewhere. For instance, in B(R) v Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315 he wrote that

[t]he flexibility of the principles [the Charter] expresses does not give [the courts] authority to distort their true meaning and purpose, nor to manufacture a constitutional law that goes beyond the manifest intention of its framers. (337)

Prof. Karazivan’s denial that Canada had “a great constitutional moment”, and her insistence that the drafting of the Constitution Act, 1867 (by “white men”) and that of the Constitution Act, 1982 (presumably by persons unknown) would be simply bizarre were they not sadly typical of the ritual denigration of Canadian constitutional history in which even Supreme Court judges have been known to engage. The truth, though, is that Canada did have not one, but two great constitutional moments ― in the mid-1860s and the early 1980s. My friend Alastair Gillespie has been exploring the first of these in a compelling (and ongoing) series of papers for the Macdonald-Laurier Institute, which, as I have written in a recent post for the CBA National

make clear [that] the Fathers of Confederation wrestled with such seemingly contemporary questions as whether diversity is a source of weakness of strength for a political community, what claims such a community may legitimately make on minorities within its midst, and what rights these minorities may assert against the community. The settlement of 1867 was a remarkable achievement in this regard.

To be sure, the Fathers of Confederation were indeed white men ― as were those who took part in the framing of the US Constitution, to which prof. Karazivan does not deny the status of a “great constitutional moment”. This is one reason, among others, why I do not find the democratic case for originalism very compelling. But the sexism and racism of our 19th-century forbears is not a reason for dismissing the substance of their achievements; and least of all for allowing a group nine men and women, who are if anything even less representative of society than the Fathers of Confederation on every dimension except for gender, the power to re-write the constitution. As for the enactment of the Canadian Charter of Rights and Freedoms, it was preceded by wide-ranging public consultations which resulted, for example, in the adoption of section 28 at the urging of feminist groups, as Kerri Froc has shown. Why prof. Karazivan claims it was undemocratic, I cannot understand.

That the constitution is rigid and difficult to amend is a feature, not a bug that needs to be removed by the backdoor expedient of judicial reinterpretation. The politicians who came up with and agreed to the amending formula in Part V of the Constitution Act, 1982 obviously thought it was flexible enough. Why were they wrong? That said, had prof. Karazivan taken public meaning originalism, and in particular the work of those originalists who recognize the distinction between constitutional interpretation and constitutional construction, seriously, she would have realized that many, perhaps most originalists do not advocate for a static constitutional law. They insist that the meaning of the constitution’s text is fixed, but recognize that this text can in fact be applied to facts and circumstances quite unforeseen at the time of its drafting through the development of constitutional doctrine.

Finally, I fail to see how living constitutionalism can lead us to a better understanding of the constitution. The argument, insofar as I understand it, seems question-begging. Saying treating the constitution as a “living tree” allows us to understand it better presupposes that the object of constitutional interpretation is the contemporary constitution rather than the intention of the constitutional text’s drafters or its original public meaning ― which is very much the point in issue. To be sure, Canadian constitutional tradition is laden with denunciations ― usually quite ignorant denunciations ― of originalism. But as the emerging Canadian scholarship that takes originalism seriously shows, these denunciations do not tell us the whole story. Nor can they serve as a normative justification in the absence of any more compelling ones.

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As I mentioned at the outset, prof. Karazivan addresses an important question, that of the place of originalism in the Supreme Court’s understanding of constitutional structure. Unfortunately, she does so in a way that reflects a simplistic or outdated understanding of originalism, and as a result oversimplifies relevant precedents and offers thoroughly unconvincing arguments against originalism. That her arguments do not succeed does not show that the Court is right to be as originalist as it is, or that it ought to be more so. That case remains to be made. But so does prof. Karazivan’s in favour of living constitutionalism. Her article does not advance it.