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!

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.