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pheloniusfriarIt's been a while... but I'm taking two "social sciences" courses this summer: one political science (May and June, Mon/Wed mornings) and one feminist studies (July and August, Tue/Thu evenings). I'm also taking a math course (statistics and probability) for the whole summer (May through August, Mon/Wed evenings). I'm also working at least full time on the CRIPT and FOREWARN projects. But with any luck, that will only go for another couple of weeks in June (and maybe a week or two in August) because the university screwed up the project's funding and they don't have enough money to pay me for the whole summer (everybody else has been laid off, sigh... although most have been picked up in some manner by other projects or endeavours at the school).
This was a fun short essay to write, it's for a course called "Canadian Political Institutions", which is described as: "An examination of Canadian political institutions, including federalism, Parliament, the constitution, political parties and the electoral system." It's almost a guilty pleasure, but I'm fascinated with this stuff. It's also the brother to the "Canadian Political Environment" course that I took a couple of years back (that course's description is: "An examination of the cultural, social, and economic context of Canadian politics, including interest groups and social movements, regionalism, language, ethnicity, and gender."). The instructions for this essay were: Peter Russell distinguishes between Burkean and Lockean styles of constitution-making, saying that Canada has traditionally taken a Burkean approach but in the late 20th century tried a more Lockean style. In your view, is a Burkean or a Lockean style of constitution-making better suited for Canada? Your essay must take a clear position on the above question and argue for either the Burkean or Lockean style. It should be between 1000 to 1250 words long and must have a clear thesis statement. It should also address, in some way, the following additional questions: Does it matter that Quebec has never agreed to the 1982 constitutional reforms? Was the pursuit of the failed Meech Lake and Charlottetown Accords a terrible idea?.
My next essay is on electoral reform, I can't wait! But first, this one's a bit dry getting going because I have to explain the concepts, but I get frothy and opinionated later in the essay and it apparently picks up at that point ;).
Constitution-Making, Burkean Style:
A Kinder, Gentler, More Canadian Approach
Canada, in both it’s creation and evolution, has experienced a primarily Burkean, pragmatic and largely unwritten, approach to its constitutional development. This tactical, rather than strategic, approach is in profound contrast with countries such as the United States of America that took a deeply Lockean, deliberate and written, trajectory to realizing a constitution. In the late 20th century, largely motivated by the process of finalizing Canada’s independence from Britain and the separatist threat posed by Quebec, the Canadian political elite undertook a period of Lockean “mega-constitutional” projects (Dyck 2011). Of the many attempts at massive constitutional reform, only the Constitution Act of 1982 was adopted, and even it has never been ratified by the provincial legislature of Quebec. It is clear, looking back at the devastating impact of that period, that only a predominantly Burkean approach to constitutional reform will ever succeed in Canada — the Lockean style of constitution making virtually guarantees that some powerful constituency will be alienated at great cost to the federation. Thus, Canada needs to back away from further mega-constitutional attempts and adopt a deliberate and carefully thought-out Burkean strategy going forward.
Canada, like Britain, has a long history of organic constitutional development — a gradual, incremental, and pragmatic approach to change to ensure the “peace, order, and good government of Canada” (Dyck 2011). According to Edmund Burke, the constitution is not a monolithic document drawn up and agreed to and “containing all of a society’s rules and principles of government”, it is the “collection of laws, institutions, and political practices that have survived the test of time and are found to serve the society’s interests tolerably well” (Russell [2006] 2009). Canada is generally regarded as having a Burkean-style of constitution — it was not the result of a deliberate undertaking, but was assembled piecemeal in dribs and drabs over hundreds of years as a combination of written text, and oral and institutional tradition.
In contrast, the frenzy of constitutional reformation projects roughly between 1960 and the turn of the century attempted to formally craft major changes in order to remedy what were seen as the weaknesses of our complex constitutional structure. This is a more “Lockean” approach to constitution-making. It was the opinion of John Locke that the “constitution is a covenant amongst a sovereign people on how they are to be governed”, and is a supreme law “representing the enduring will of a single sovereign people containing a complete statement of its fundamental principles and institutions of governance” (Russell [2006] 2009). The drive to enshrine both the existing constitution and a number of radical changes to the constitution was driven in large part by a direct challenge to the Canadian federation by Quebec nationalist ambitions as that province’s people found their footing after the Quiet Revolution. The mounting crisis also provided opportunity to propose major changes as part of the process of severing the last legislative and constitutional ties with the British Parliament, and come up with a purely Canadian constitutional amendment capability. While the formal Constitution Act of 1982 was successful in many ways, and did “bring home” the Canadian constitution, the opposition of the Quebec legislature and people to the process and result was an indication that a more subtle approach is required for Canada to achieve stable change. The highly divisive and ultimately failed Meech Lake and Charlottetown Accords, and the near breakup of Canada that was arguably a direct consequence of those attempts, were a clear condemnation of a Lockean approach to constitutional reform in this country.
The conditions that resulted in the 1982 Constitution Act were unique and are likely irreproducible. In the end, it doesn’t really matter that Quebec’s legislature has never agreed to it, it has proven to be a sufficiently pragmatic endeavour that even the separatists have failed to maintain it as a “cause célèbre” and it has peacefully taken its place as a written component of our overall constitution. Not so for the Meech Lake and Charlottetown Accords — those were more inspired by political considerations than necessarily pragmatic ones and were much more Lockean in their formulation and intent. In contrast to the Constitution Act of 1982, these efforts have done lasting damage to the federation — since the offers of massive devolution of power to the provinces and radical changes to the federal structure have been made, it remains as precedent hanging over this country that will shape constitutional and quasi-constitutional talks for generations to come. The primary good that those efforts left behind is the clear warning not to try it again, and to work slowly at change as it is needed.
While a pragmatic gradualism and a mostly unwritten constitution provide a tremendous amount of flexibility in successfully responding to the gradual adaptations that occur as a country changes, it does pose a risk of being inadequate during crisis situations. It further poses a huge risk to stability, and democracy itself, because the lack of written limitations and rules can be taken advantage of by the unscrupulous, the power-hungry, or ideologues that manage to find their way into a position of government. The unwritten conventions and traditions that form so much of our constitution are only as good as is the will to adhere to them and insofar as the “breach of a convention would result in ‘serious political repercussions’ — dismissal, defeat, disgrace — and eventually to changes in the law so that it would not happen again” (Dyck 2011) — essentially forcing those that followed to formalize that portion of the unwritten constitution that was transgressed. But ultimately, the conventions are only as strong as the will of the people to hold those in power to account, and only when a sufficient number believe in those conventions and are willing to stand up to ensure they are adhered to. In short, the unwritten provisions of our constitution only work until the population loses interest in our particular form of democracy. With the current massive majority government embarking on radical changes to the legislative and constitutional character of the country with the explicit support of only 24.2% of eligible voters (39.6% of those that voted (Elections Canada 2011) with only a 61.1% voter turnout (Elections Canada 2012)), it can easily be argued that such a scenario is before us now and that Canada’s Burkean style constitution is in the process of being subverted. Only time will tell whether the people of Canada hold our political institutions in anything other than contempt (or possibly, ignorance), and if they will ultimately rise to hold those that challenge it to account.
So therein lies the challenge: Canada is at risk because of our Burkean approach to constitution but we will not tolerate Lockean attempts to reform it. If the only way of preventing extremists from hijacking the constitutional institutions of this country is to embark upon further Lockean adventures, it is fair to say that the federation of Canada is ultimately doomed. But is struggling along with our Burkean approach any less likely to destroy the country? Not only does a Burkean style of constitutional evolution help mitigate the divisive and confrontational environment that seems to arise in most Lockean style states, it is a desirable trait for a society to have in this dynamic era of neo-liberal globalization: it is a powerful tool that can allow us to adapt to rapidly changing conditions without being tied directly back to an ancient Lockean document that could not have foreseen these modern challenges — all the while leveraging time-tested institutional traditions to act as an anchor for the wisdom of the choices as they are made.
What the current situation does demonstrate is for the Burkean approach to continue to work, steps need to be taken to formalize it. Such a strategy does not have to be an ironic undertaking of binding the Burkean approach in a Lockean formulation, it can itself be an organic (if partially written) set of institutions with the intention of guiding rather than dictating. We need look no further than the way that the written phrase “peace, order, and good government of Canada” has influenced the broader Canadian constitution in both legislation and judicial rulings to find a firm foundation for this argument. It is written, but is non-specific; it has power, but can be adapted to issues as they arise. But the power it has arises from its ability to be included as explicit guidance in the courts, whereas “some actions that are legal according to the formal written words of the constitution may be unconstitutional if they violate a convention that has superseded a written power [... but ...] the courts cannot enforce conventions” (Dyck 2011) [emphasis in original]. The obvious solution is to extend the ability to enforce constitutional conventions to the courts. This would inform the process of the evolution of our institutions and traditions and provide a safety mechanism against unnecessary or malicious tampering. The success of the Charter or Rights in this regard should provide some comfort in bestowing that sort of power on the courts. A further parallel can be drawn with the relatively recent and powerful judicial phenomenon of accepting and analyzing the oral and observed traditions of aboriginal peoples in rights and land claim cases (note, in particular, the phrase “only record of their past” and how it resonates with the notion of Burkean governance):
And finally, to provide a final line of defence for our Burkean constitution, the Governor General’s responsibilities could be formally extended to provide a single strong power to respond to calls by the population (possibly represented by the Opposition or a coalition thereof) to reign in a government that is in contempt of Parliament or any major aspect of the overall constitutional tradition of the country — thus giving explicit instruction and legitimate power to that office for dealing with crises such as the one that led to the proroguing of Parliament by the Conservatives in 2008 (where there was no choice for the Governor General but to acquiesce to the Prime Minister’s request).
A Burkean approach to the constitution in Canada has proven to be the only viable one possible given its pragmatic history, and complex federal structure in a multicultural and multi-regional environment. The mega-constitutional ventures in the late 20th century demonstrated that the Lockean approach is toxic to the organism that is Canada. The challenge going forward is to explicitly endorse the Burkean approach and implement a minimal set of guiding principles, limitations, and powers to ensure that at least the institutions that support the evolution of the constitution are up to the challenge. Ultimately, the success or failure of the approach will fall at the feet of the population — the electorate — who must hold their government responsible to them. With the dysfunctionally low voter turnout in recent elections and strong majorities explicitly representing less than a quarter of the electorate, Canada is in a state of constitutional crisis. If level heads prevail, perhaps along with the implementation of mandatory voting, we will see an end to this chapter in our evolution as a country and return to an extended period of peace, order, and good Burkean governance.
Bibliography
Dyck, Rand. 2011. Canadian Politics: Critical Approaches. 6th ed. Toronto: Nelson Education.
Elections Canada. 2011. “Official Voting Results: Forty-First General Election 2011, Table 8: Number of valid votes by political affiliation.” http://www.elections.ca/scripts/ovr2011/default.html (Accessed May 21, 2012).
Elections Canada. 2012. “Voter Turnout at Federal Elections and Referendums.” http://www.elections.ca/content.aspx?section=ele&dir=turn&document=index&lang=e (Accessed May 21, 2012).
Hurley, Mary C. 2000. “Aboriginal Title: The Supreme Court of Canada Decision in Delgamuukw v. British Columbia (BP459e).” http://www.parl.gc.ca/Content/LOP/ResearchPublications/bp459-e.htm (Accessed May 22, 2012).
Russell, Peter H. [2006] 2009. “Constitutional Politics: In A New Era Canada Returns to Old Methods” in Russell, Peter H. et al, eds. Essential Readings in Canadian Government and Politics. Toronto: Emond Montgomery Publications.
This was a fun short essay to write, it's for a course called "Canadian Political Institutions", which is described as: "An examination of Canadian political institutions, including federalism, Parliament, the constitution, political parties and the electoral system." It's almost a guilty pleasure, but I'm fascinated with this stuff. It's also the brother to the "Canadian Political Environment" course that I took a couple of years back (that course's description is: "An examination of the cultural, social, and economic context of Canadian politics, including interest groups and social movements, regionalism, language, ethnicity, and gender."). The instructions for this essay were: Peter Russell distinguishes between Burkean and Lockean styles of constitution-making, saying that Canada has traditionally taken a Burkean approach but in the late 20th century tried a more Lockean style. In your view, is a Burkean or a Lockean style of constitution-making better suited for Canada? Your essay must take a clear position on the above question and argue for either the Burkean or Lockean style. It should be between 1000 to 1250 words long and must have a clear thesis statement. It should also address, in some way, the following additional questions: Does it matter that Quebec has never agreed to the 1982 constitutional reforms? Was the pursuit of the failed Meech Lake and Charlottetown Accords a terrible idea?.
My next essay is on electoral reform, I can't wait! But first, this one's a bit dry getting going because I have to explain the concepts, but I get frothy and opinionated later in the essay and it apparently picks up at that point ;).
A Kinder, Gentler, More Canadian Approach
Canada, in both it’s creation and evolution, has experienced a primarily Burkean, pragmatic and largely unwritten, approach to its constitutional development. This tactical, rather than strategic, approach is in profound contrast with countries such as the United States of America that took a deeply Lockean, deliberate and written, trajectory to realizing a constitution. In the late 20th century, largely motivated by the process of finalizing Canada’s independence from Britain and the separatist threat posed by Quebec, the Canadian political elite undertook a period of Lockean “mega-constitutional” projects (Dyck 2011). Of the many attempts at massive constitutional reform, only the Constitution Act of 1982 was adopted, and even it has never been ratified by the provincial legislature of Quebec. It is clear, looking back at the devastating impact of that period, that only a predominantly Burkean approach to constitutional reform will ever succeed in Canada — the Lockean style of constitution making virtually guarantees that some powerful constituency will be alienated at great cost to the federation. Thus, Canada needs to back away from further mega-constitutional attempts and adopt a deliberate and carefully thought-out Burkean strategy going forward.
Canada, like Britain, has a long history of organic constitutional development — a gradual, incremental, and pragmatic approach to change to ensure the “peace, order, and good government of Canada” (Dyck 2011). According to Edmund Burke, the constitution is not a monolithic document drawn up and agreed to and “containing all of a society’s rules and principles of government”, it is the “collection of laws, institutions, and political practices that have survived the test of time and are found to serve the society’s interests tolerably well” (Russell [2006] 2009). Canada is generally regarded as having a Burkean-style of constitution — it was not the result of a deliberate undertaking, but was assembled piecemeal in dribs and drabs over hundreds of years as a combination of written text, and oral and institutional tradition.
In contrast, the frenzy of constitutional reformation projects roughly between 1960 and the turn of the century attempted to formally craft major changes in order to remedy what were seen as the weaknesses of our complex constitutional structure. This is a more “Lockean” approach to constitution-making. It was the opinion of John Locke that the “constitution is a covenant amongst a sovereign people on how they are to be governed”, and is a supreme law “representing the enduring will of a single sovereign people containing a complete statement of its fundamental principles and institutions of governance” (Russell [2006] 2009). The drive to enshrine both the existing constitution and a number of radical changes to the constitution was driven in large part by a direct challenge to the Canadian federation by Quebec nationalist ambitions as that province’s people found their footing after the Quiet Revolution. The mounting crisis also provided opportunity to propose major changes as part of the process of severing the last legislative and constitutional ties with the British Parliament, and come up with a purely Canadian constitutional amendment capability. While the formal Constitution Act of 1982 was successful in many ways, and did “bring home” the Canadian constitution, the opposition of the Quebec legislature and people to the process and result was an indication that a more subtle approach is required for Canada to achieve stable change. The highly divisive and ultimately failed Meech Lake and Charlottetown Accords, and the near breakup of Canada that was arguably a direct consequence of those attempts, were a clear condemnation of a Lockean approach to constitutional reform in this country.
The conditions that resulted in the 1982 Constitution Act were unique and are likely irreproducible. In the end, it doesn’t really matter that Quebec’s legislature has never agreed to it, it has proven to be a sufficiently pragmatic endeavour that even the separatists have failed to maintain it as a “cause célèbre” and it has peacefully taken its place as a written component of our overall constitution. Not so for the Meech Lake and Charlottetown Accords — those were more inspired by political considerations than necessarily pragmatic ones and were much more Lockean in their formulation and intent. In contrast to the Constitution Act of 1982, these efforts have done lasting damage to the federation — since the offers of massive devolution of power to the provinces and radical changes to the federal structure have been made, it remains as precedent hanging over this country that will shape constitutional and quasi-constitutional talks for generations to come. The primary good that those efforts left behind is the clear warning not to try it again, and to work slowly at change as it is needed.
While a pragmatic gradualism and a mostly unwritten constitution provide a tremendous amount of flexibility in successfully responding to the gradual adaptations that occur as a country changes, it does pose a risk of being inadequate during crisis situations. It further poses a huge risk to stability, and democracy itself, because the lack of written limitations and rules can be taken advantage of by the unscrupulous, the power-hungry, or ideologues that manage to find their way into a position of government. The unwritten conventions and traditions that form so much of our constitution are only as good as is the will to adhere to them and insofar as the “breach of a convention would result in ‘serious political repercussions’ — dismissal, defeat, disgrace — and eventually to changes in the law so that it would not happen again” (Dyck 2011) — essentially forcing those that followed to formalize that portion of the unwritten constitution that was transgressed. But ultimately, the conventions are only as strong as the will of the people to hold those in power to account, and only when a sufficient number believe in those conventions and are willing to stand up to ensure they are adhered to. In short, the unwritten provisions of our constitution only work until the population loses interest in our particular form of democracy. With the current massive majority government embarking on radical changes to the legislative and constitutional character of the country with the explicit support of only 24.2% of eligible voters (39.6% of those that voted (Elections Canada 2011) with only a 61.1% voter turnout (Elections Canada 2012)), it can easily be argued that such a scenario is before us now and that Canada’s Burkean style constitution is in the process of being subverted. Only time will tell whether the people of Canada hold our political institutions in anything other than contempt (or possibly, ignorance), and if they will ultimately rise to hold those that challenge it to account.
So therein lies the challenge: Canada is at risk because of our Burkean approach to constitution but we will not tolerate Lockean attempts to reform it. If the only way of preventing extremists from hijacking the constitutional institutions of this country is to embark upon further Lockean adventures, it is fair to say that the federation of Canada is ultimately doomed. But is struggling along with our Burkean approach any less likely to destroy the country? Not only does a Burkean style of constitutional evolution help mitigate the divisive and confrontational environment that seems to arise in most Lockean style states, it is a desirable trait for a society to have in this dynamic era of neo-liberal globalization: it is a powerful tool that can allow us to adapt to rapidly changing conditions without being tied directly back to an ancient Lockean document that could not have foreseen these modern challenges — all the while leveraging time-tested institutional traditions to act as an anchor for the wisdom of the choices as they are made.
What the current situation does demonstrate is for the Burkean approach to continue to work, steps need to be taken to formalize it. Such a strategy does not have to be an ironic undertaking of binding the Burkean approach in a Lockean formulation, it can itself be an organic (if partially written) set of institutions with the intention of guiding rather than dictating. We need look no further than the way that the written phrase “peace, order, and good government of Canada” has influenced the broader Canadian constitution in both legislation and judicial rulings to find a firm foundation for this argument. It is written, but is non-specific; it has power, but can be adapted to issues as they arise. But the power it has arises from its ability to be included as explicit guidance in the courts, whereas “some actions that are legal according to the formal written words of the constitution may be unconstitutional if they violate a convention that has superseded a written power [... but ...] the courts cannot enforce conventions” (Dyck 2011) [emphasis in original]. The obvious solution is to extend the ability to enforce constitutional conventions to the courts. This would inform the process of the evolution of our institutions and traditions and provide a safety mechanism against unnecessary or malicious tampering. The success of the Charter or Rights in this regard should provide some comfort in bestowing that sort of power on the courts. A further parallel can be drawn with the relatively recent and powerful judicial phenomenon of accepting and analyzing the oral and observed traditions of aboriginal peoples in rights and land claim cases (note, in particular, the phrase “only record of their past” and how it resonates with the notion of Burkean governance):
these principles require trial courts to adapt the rules of evidence in light of difficulties of proof intrinsic to the adjudication of Aboriginal claims, so that the aboriginal perspective on their practices, customs and traditions and on their relationship with the land, are given due weight by the courts. In practical terms, this requires the courts to come to terms with the oral histories of aboriginal societies, which, for many aboriginal nations, are the only record of their past … [and which] play a crucial role in the litigation of aboriginal rights (Hurley 2000)
And finally, to provide a final line of defence for our Burkean constitution, the Governor General’s responsibilities could be formally extended to provide a single strong power to respond to calls by the population (possibly represented by the Opposition or a coalition thereof) to reign in a government that is in contempt of Parliament or any major aspect of the overall constitutional tradition of the country — thus giving explicit instruction and legitimate power to that office for dealing with crises such as the one that led to the proroguing of Parliament by the Conservatives in 2008 (where there was no choice for the Governor General but to acquiesce to the Prime Minister’s request).
A Burkean approach to the constitution in Canada has proven to be the only viable one possible given its pragmatic history, and complex federal structure in a multicultural and multi-regional environment. The mega-constitutional ventures in the late 20th century demonstrated that the Lockean approach is toxic to the organism that is Canada. The challenge going forward is to explicitly endorse the Burkean approach and implement a minimal set of guiding principles, limitations, and powers to ensure that at least the institutions that support the evolution of the constitution are up to the challenge. Ultimately, the success or failure of the approach will fall at the feet of the population — the electorate — who must hold their government responsible to them. With the dysfunctionally low voter turnout in recent elections and strong majorities explicitly representing less than a quarter of the electorate, Canada is in a state of constitutional crisis. If level heads prevail, perhaps along with the implementation of mandatory voting, we will see an end to this chapter in our evolution as a country and return to an extended period of peace, order, and good Burkean governance.
Bibliography
Dyck, Rand. 2011. Canadian Politics: Critical Approaches. 6th ed. Toronto: Nelson Education.
Elections Canada. 2011. “Official Voting Results: Forty-First General Election 2011, Table 8: Number of valid votes by political affiliation.” http://www.elections.ca/scripts/ovr2011/default.html (Accessed May 21, 2012).
Elections Canada. 2012. “Voter Turnout at Federal Elections and Referendums.” http://www.elections.ca/content.aspx?section=ele&dir=turn&document=index&lang=e (Accessed May 21, 2012).
Hurley, Mary C. 2000. “Aboriginal Title: The Supreme Court of Canada Decision in Delgamuukw v. British Columbia (BP459e).” http://www.parl.gc.ca/Content/LOP/ResearchPublications/bp459-e.htm (Accessed May 22, 2012).
Russell, Peter H. [2006] 2009. “Constitutional Politics: In A New Era Canada Returns to Old Methods” in Russell, Peter H. et al, eds. Essential Readings in Canadian Government and Politics. Toronto: Emond Montgomery Publications.
