Canada and the Ethics of Constitutionalism: Identity, Destiny, and Constitutional Faith 9780773555594

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Can ada a n d t h e E t h ic s o f Consti tuti onali sm

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Canada and the Ethics of Constitutionalism Identity, Destiny, and Constitutional Faith

S a m u e l V . La Selva

McGill-­Queen’s University Press Montreal & Kingston • London • Chicago

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©  McGill-Queen’s University Press 2018 ISBN ISBN ISBN ISBN

978-0-7735-5530-3 (cloth) 978-0-7735-5531-0 (paper) 978-0-7735-5559-4 (eP DF ) 978-0-7735-5560-0 (eP UB)

Legal deposit fourth quarter 2018 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free

We acknowledge the support of the Canada Council for the Arts, which last year invested $153 million to bring the arts to Canadians throughout the country. Nous remercions le Conseil des arts du Canada de son soutien. L’an dernier, le Conseil a investi 153 millions de dollars pour mettre de l’art dans la vie des Canadiennes et des Canadiens de tout le pays.

Library and Archives Canada Cataloguing in Publication LaSelva, Samuel V. (Samuel Victor), 1952–, author Canada and the ethics of constitutionalism identity, destiny, and constitutional faith / Samuel V. LaSelva. Includes bibliographical references and index. Issued in print and electronic formats. isb n 978-0-7735-5530-3 (cloth). – is bn 978-0-7735-5531-0 (paper). – isb n 978-0-7735-5559-4 (ep df ). – is bn 978-0-7735-5560-0 (ep u b ) 1. Constitutional history – Canada.  I. Title. KE4199.L37 2018 KF4482.L37 2018

342.7102'9

C 2018-904611-2 C 2018-904612-0

This book was typeset by Marquis Interscript in 10.5 / 13 Sabon.

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In memory of Katherine Brearley scholar, teacher, humanist

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Contents

Preface ix   1 The New Canada, the Old Canada, and The Spirit of Haida Gwaii: Three Images of the Canadian Constitutional Faith  3   2 The Charter of Rights, the British Connection, and the Americanization Thesis: Toward a Montesquieuean Analysis of Rights and Their Protection  23   3 The Notwithstanding Clause and the American Rights Model: Federalism and Legislative Power in Canada and the United States 43   4 British Judges, Charter Dialogue, and America’s “Celebrated Footnote”: Judicial Review and Fundamental Values  61   5 Free Speech for the Thought That We Hate? Canadian Constitutionalism, British Pluralism, and First Amendment Exceptionalism 88   6 Mosaic and Melting Pot: The Dialectic of Pluralism and Constitutional Faith in Canada and the United States  114   7 Secession and Identity: Canada, the United States, and Contemporary Britain as Divided Houses  136   8 The Spirit in the Land and the Spirit of the Constitution: Aboriginal Self-Government in Canada and the United States  163   9 The Arduous Destiny of the Peaceable Kingdom: George Grant, Alan Cairns, and the Meaning of the Canadian Constitutional Crisis 188

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10 Constitutional Faiths: The Canadian Identity, American Freedom, and the Remaking of the British Constitution  208 Notes 237 Bibliography 271 Index 305

Preface

“On all great subjects … many things [remain] to be said.”1 Writing in 1859, John Stuart Mill made his famous remark in an essay on the much-admired British Constitution and he was not thinking about Canada. Nevertheless, the Canadian Constitution is a great subject in Mill’s sense, because Canada has something important to contribute to Western constitutionalism, particularly in terms of constitutional faith and the ethics of constitutionalism. Canada has made its contribution almost in spite of itself. Caught between two empires and two great constitutional systems, the temptation has been to imitate either the British or the American model – the British model in 1867 when Canada adopted its new constitution and John A. Macdonald did as much as he could to ensure that Canada maintained “the British connection” and British political institutions;2 the American model in 1982 when the Charter of Rights was entrenched and Pierre Trudeau insisted that the time had come to recognize the “inalienable rights” of the individual and the sovereignty of “We, the People of Canada.”3 That Canada created something new, in 1867 and 1982, is because Macdonald and Trudeau compromised when confronted by competing conceptions of the Canadian identity and alternative understandings of Canada’s destiny. Macdonald compromised to meet the demands of Quebec and the Maritime Provinces. Trudeau compromised on the Charter’s notwithstanding clause, on Aboriginal rights, and on “we the people.”4 That Canadians have not always viewed the resulting compromises with great enthusiasm or fully recognized their deeper significance seems evident from a book of essays published one year after the adoption of the Charter entitled And No One Cheered.5 But in matters of constitutional ethics cheerfulness has

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never been an indispensable requirement for innovation and creativity – or even for effectiveness and longevity. Modern constitutionalism knows a good deal about cheerfulness, even if it is not frequently found in Canadian discussions. In The English Constitution, published in 1867, Walter Bagehot discussed the modern world’s two most prominent constitutions; he praised one and rejected the other. The fatal vice in the American system, he insisted, was the absence of a ready, deciding power to deal with vital issues – even obvious evils could not be quickly remedied. In contrast, the English Constitution had achieved unity, and this “success” depended on “the peculiar provision … which places the choice of the executive in the ‘people’s house.’” The English constitution, he wrote, “is framed on the principle of choosing a single sovereign authority, and making it good: the American, upon the principle of having many sovereign authorities, and hoping that their multitude may atone for their inferiority.”6 Like A.V. Dicey after him in The Law of the Constitution, Bagehot enthusiastically portrayed British parliamentary responsible government and the idea of a single sovereign authority. He coupled his portrayal with a decidedly Hobbesian dismissal of the American system. Americans, however, have viewed their momentous engagement with modern constitutionalism far more favourably. “The preservation of the sacred fire of liberty, and the destiny of the republican model of government,” George Washington told his countrymen, “are justly considered as … staked on the experiment entrusted to … the American People.”7 In Common Sense, Thomas Paine called America a “new world” and a home “for the persecuted lovers of civil and religious liberty.”8 James Madison described the checks and balances of the compound republic of America as “the workshop of liberty.”9 Even during the Civil War, Abraham Lincoln celebrated America’s founding, prayed for “a new birth of freedom,” and called the American model “the last, best hope of earth.”10 Caught between the “single sovereign” of the British model and the American people’s “sacred fire of liberty,” neither of which fit the pluralistic identity of Canada or its multinational destiny, either in 1867 or even less in 1982, Canadians not only compromised but also engaged in cautious constitutional experimentation. At the heart of the experiment is Canada’s contribution to the ethics and practice of constitutionalism and its enigmatic constitutional faith. There exists no canonical statement of the Canadian constitutional faith, and much

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of the time it is only partly visible. Because there are also times when it is not visible, or even not practised, its very existence may seem questionable, and the Canadian constitution is either dismissed altogether as a coercive imposition or regarded as a hodgepodge of ad hoc compromises with an uncertain and meaningless future.11 But there is more to the Canadian constitutional experiment than a crude Machiavellian political manoeuvring, as Lord Sankey emphasized in Edwards v. Attorney General of Canada, also known as the Persons case. Women, feminists, and many others celebrate the case because of what it said about “women as persons.” The Supreme Court frequently cites it because it rejected the view that the Canadian constitution was frozen in time and, instead, described it as “a living tree capable of growth and expansion.” There is also a third reason why it is a great Canadian case. In Persons, Lord Sankey said something significant about Confederation and, in particular, the spirit of Canadian constitutionalism. “These [Canadian] resolutions as revised by the delegates from the difference Provinces in London in 1866,” he wrote, “were based upon a consideration of the rights of others and expressed in a compromise which will remain a lasting monument to the political genius of Canadian statesmen.”12 Lord Sankey’s statement about the genius of Canadian constitutionalism in terms of “compromise” and the “rights of others” is different from “compromise” and the genius of the “single sovereign,” or “compromise” and the genius of the “the sacred fire of liberty.” When the Canadian constitutional faith is understood in this way, it has both forward-looking and backward-looking dimensions. It stretches back to British Conquest. In the “illogical” situation created by the Battle of the Plains of Abraham, Northrop Frye wrote, “the two factors to be taken into account were: (a) the British have conquered the French (b) the British have done nothing of the kind. The only way out of this was a settlement that guaranteed some rights to both parties.” Frye’s interpretation of the Quebec Act of 1774 is significant because of what it says about Canadian constitutionalism and about the Canadian identity. Frye believed that the “necessity of recognizing two major social elements at the beginning meant that nobody could ever possibly know what a ‘hundred per cent Canadian’ was.”13 If multiculturalism and Aboriginal rights are added, the idea of “a 100 per cent Canadian” becomes even more open to pluralistic reinterpretation.14 The forward-looking dimensions include recent Supreme Court decisions on Aboriginal rights. In Delgamuuku, the

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Court urged Aboriginals and non-Aboriginals to avoid lengthy and costly litigation and to move forward together in a process of reconciliation because “let us face it, we are all here to stay.”15 In the Confederation debates, it was George-Étienne Cartier (the co-equal of Macdonald) who focused most on reconciliation in a context redefined by Lord Durham’s Report and the American Civil War. He envisaged a Canadian constitutional settlement and a Canadian constitutional faith that adopted a distinctive scheme of federalism with minority rights and developed a common, but limited, political nationality capable of sustaining a distinctive kind of amity or “fraternity.”16 It was an understanding of Canada’s destiny that rejected not only Durham’s assimilation proposals, but also the idea of cultural solitudes, and did not depend on borrowed constitutional models.17 When Benjamin Franklin endorsed the US Constitution at the Federal Convention, he did so, he said, because he expected “no better,” and was not sure “that it is not the best.”18 Canadians have almost always been more inclined to agree with Mill, and have believed that more remains to be said and done. Some, including some Aboriginal and Quebecois nationalists, have felt that “the Canada to which we really do owe loyalty is the Canada that we have failed to create.”19 But Canada has existed for a long time. As a multicultural and multinational country that has engaged in a recurring internal dialogue with the British and American constitutional models, its distinctive if incomplete contribution to constitutionalism is far from insignificant. Canada’s identity and destiny also acquire increased clarity if they are understood in the context of Canadian constitutionalism and the Canadian constitutional faith as identified by, among others, Lord Sankey, Northrop Frye, and Cartier. To make sense of Canada, both “the old Canada” insightfully described by George Grant in Lament for a Nation and “the new Canada” of Pierre Trudeau’s Conversation with Canadians, it is necessary to see how distinctive Canadian constitutionalism is and how its recurring distinctiveness does not depend on borrowed models. Canada, as Cartier said in the debates of 1865, was a new constitutional experiment that challenged orthodox assumptions and, as such, appealed to a new constitutional faith. That, in essence, is the main thesis of the book. Its chapters explore, in a Montesquieuean fashion, different aspects of Canada’s contribution to the ethics and practice of constitutionalism and its enigmatic constitutional faith.

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To say that the exploration is “Montesquieuean” is to draw attention to the fact that it examines aspects of the constitutions of Canada, the United States, and Great Britain as historical and cultural phenomena and does not construct or postulate a formal or universal model of constitutionalism. According to Isaiah Berlin, Montesquieu distrusted simplicity, rejected ideal solutions, and was most himself when he reflected on pluralism and diversity. “Montesquieu,” wrote Berlin, “is, above all, not a thinker obsessed by some single principle, seeking to order and explain everything, in terms of some central moral or metaphysical category in terms of which alone all truths must be formulated.”20 Judith Shklar emphasized that Montesequieu was a “polymath” and called him “the father of constitutions” because of the immense influence of The Spirit of Laws. She also admired “Montesquieu’s example as a political scientist. Narrative history, informed by philosophical and social analysis and a critical spirit, remain our likeliest route to political understanding.”21 There are other routes, such as Hobbes’s neo-Cartesian geometrical method or Rawls’s original position modelled partly on Locke’s state of nature theory, which have results as important for the study of constitutions. But Montesquieu’s pluralistic route with its emphasis on analyzing institutions in their historical and cultural contexts remains a source of insight and it is Montesquieu’s achievement that has guided this study of Canada’s experiment. The focus of each chapter is a problem that has engaged students of the Canadian constitution and brings into view the American and British constitutions. Chapter 1 focuses on Canadian constitutional history. Is there an identifiable Canadian constitutional faith that includes 1867 and 1982? Or does the Charter represent a new, if uncertain and contested, beginning – with Confederation as a lost constitutional world? In addressing this question, three different understandings of the Canadian constitutional faith are discussed: (1) George Grant’s portrayal of the Tory image of Confederation, (2) Pierre Trudeau’s vision of Canada with a Charter as a “just society” based on inalienable individual rights, and (3) Aboriginal ideas of an inclusive Canadian constitutionalism similar to The Spirit of Haida Gwaii. Chapter 2 examines the Americanization thesis. Did Canada turn away from British ideas of governance and its British heritage in 1982 and embrace American constitutional ideas and the American rights model? What the chapter attempts to demonstrate is the

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existence of a distinctive Canadian constitutional tradition and distinctive Canadian rights culture that cannot be equated with either the British model in 1867 or the American model in 1982. It is also the most explicitly Montesquieuean chapter in the book. Chapter 3 discusses the Charter’s notwithstanding clause and its implications not only for British-style parliamentary sovereignty and Americanstyle judicial power, but also for Canadian federalism and national unity. Its main thesis is that the notwithstanding does not make the Charter a worthless piece of paper incapable of protecting rights, but reveals important differences between Canada and the United States, including foundational differences between Canadian and American federalism as they relate to different constitutional faiths. Chapter 4 considers Canadian judicial review in a comparative context. Its starting point is the Canadian theory of “Charter dialogue” and the American “process-perfecting” theory of constitutional review. Both theories are important responses to concerns about democratic legitimacy, particularly “the counter-majoritarian difficulty.” But these responses also shift the focus away from important questions about substantive constitutional values. What requires more attention, it is suggested, are the ethical functions of judicial review because they reveal significant differences between American and Canadian constitutionalism and their respective constitutional faiths. Those differences also have implications for contemporary British judges as they exercise new responsibilities under a changing constitutional settlement. Chapter 5 examines hate propaganda and sexist pornography with particular attention to the Canadian regime of censorship and American free speech exceptionalism. The American position endorses Justice Holmes’s “freedom for the thought that we hate.” It stands in sharp contrast with the Canadian position and also with British restrictions, in 1965 and 2006, on racial and religious hate speech. The chapter analyzes the Canadian, British, and American differences, rejects both the “right answer” and relativistic alternatives, and sketches a pluralist account of hate speech in relation to “the essential moral requisites of permanent political society.”22 Chapter 6 discusses Canada as a mosaic and the United States as a melting pot. It argues that despite the increasing (if uneven) American acceptance of multiculturalism, Canada and the United States are different because Canada is also a multinational polity. As different kinds of nations, Canada and the United States require different kinds of constitutional faiths, which overlap with the differences between

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a mosaic and a melting pot. Chapter 7 examines secession in relation to three “divided houses.” The United States became a house divided against itself and fought the Civil War over slavery’s westward expansion and the resulting irreconcilable conflict between two incompatible ways of life. For pluralistic Quebec and pluralistic Canada, the recurring issue is shifting conflicts and compromises over language, culture, and nationality. In contemporary Britain, there is “the Scottish anomaly,” with its changing relationship to the Westminster Parliament and its recurring questions about the Union of 1707.23 All three provide insights into Lincoln’s famous question of what turns a divided house into a house divided against itself. Aboriginal self-government is the focus of chapter 8. In both Canada and the United States, the history is tragic and the legacy of colonialism many-sided, which it is important to acknowledge. The situation must be remedied, both through Aboriginal self-government and in other ways. But Aboriginal self-government also raises questions about the Canadian and American constitutional faiths. In the United States, Aboriginal self-government is often described as seeking to create “islands of Indianness.”24 In Canada, many Indigenous communities want to complete the circle of Confederation by becoming partners in it, demanding a status similar to Quebec for themselves and advocating a three-nation theory of the Canadian constitution. Aboriginal self-government in the United States is primarily a challenge to, or for, the American melting pot and liberal America’s longstanding aspiration to create a country in which “individuals of all nations are melted into a new race of men.”25 In Canada, the most difficult constitutional issues relate to Canadian federalism, the tworow wampum belt with its beads of friendship, and the mosaic ideal.26 Indigenous self-government presents different challenges in Canada and the United States, and highlights different constitutional faiths. Chapter 9 analyzes the Canadian constitution in crisis, a topic of immense public concern between the early 1960s and the late 1990s. It concentrates on the writings of George Grant and Alan Cairns, who devoted much of their distinguished careers to analyzing the crisis. Grant focused on Confederation, on Canada’s fading historic relationship with Great Britain, and its changing relationship with the American empire. Cairns was primarily concerned with the Charter of Rights, the internal dilemmas of federalism versus the Charter, and Canada’s uncertain constitutional future. Given the range and depth of their research and reflections, what do Grant’s and Cairns’s

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writings reveal about the Canadian constitutional crisis – that is, about Canada from Confederation to the Charter, about the identity and destiny of Canada, and about Canada as a constitutional experiment? The chapter also notes significant differences between Canadian and American theorizing about crises. Chapter 10, the last chapter, devotes equal attention to the British, American, and Canadian constitutions as exemplars of different ­constitutional faiths. No country is immortal; yet a country’s constitution is “intended to endure for ages to come.”27 The American constitution has survived many crises, and the American people have constantly reaffirmed their faith in freedom. The British constitution was once just as admired, particularly the Whiggism of the “Glorious Revolution” with its legacy of parliamentary sovereignty and the rule of law.28 But contemporary Britain is in an uneasy period of transition, which the 1998 Human Rights Act and devolution have not brought to a close, and the European Union affects it in unpredictable ways.29 Canada’s constitution has never been the object of unqualified admiration, but it has survived many crises and Canadians have invented innovative ways of dealing with the challenges of a deeply pluralistic and changing country. Since the idea of a constitutional faith is not the monopoly of any one country, what can be learned about different constitutional faiths from the British, American, and Canadian constitutions? Woodrow Wilson believed that America’s destiny was saving the world from the enemies of freedom.30 Canada’s destiny is more difficult to discern. But in 1867 and 1982, it reached beyond the British and American models, devised (however imperfectly) constitutional arrangement to accommodate “the rights of others,” and in that way contributed to the ethics and practice of constitutionalism in a divided world. Finally, a few remarks about “constitutional faith” and “the ethics of constitutionalism” in a comparative context. “Constitutional faith” is most frequently and comfortably discussed in relation to the US Constitution.31 Americans, however, developed their ideas about “the sacred fire of liberty” in reaction to British ideas about “the sacred rights of sovereignty.”32 Benjamin Franklin, for example, said that the theory of sovereignty “made him quite sick” and the objective of Americans has been to chain the “Mortall God” famously described in Leviathan.33 In contrast, the primary concern of English sovereignty theorists, from Hobbes to Bagehot and Dicey, has been with explaining, justifying, and taming Leviathan. Moreover, while “the English

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invented the doctrine of parliamentary sovereignty, even … the high priests of the mystery were never free from doubt as to its meaning and scope.”34 The Canadian Constitution also has its “mysteries,” its “high priests” and its constitutional faith. John A. Macdonald and Pierre Trudeau, each in his own way, certainly stood for a constitutional faith. This book discusses the Canadian constitutional faith, but it does not assume that either Macdonald or Trudeau pierced all of its mysteries. Nor does it suppose that the “taming” or “chaining” of Leviathan is the essence of Canada. Canada’s constitutional faith is focused on the pluralism of “the mosaic” and “the rights of others.” As for “the ethics of constitutionalism,” the idea of “constitutionalism” is commonly analyzed in terms of processes or procedures that limit arbitrary power.35 However, some constitutional theorists have gone further. When describing “the rule of law,” Dicey included “the rights of Englishmen,” emphasized “the moral basis of the Constitution,” and constantly referred to the sovereignty of Parliament. What Dicey described was an ethic of constitutionalism that he called “English constitutionalism.”36 In rejecting arbitrary power, other constitutions – like the American and the Canadian – also embody a composite and distinctive ethic of constitutionalism.

§ It is a pleasure to acknowledge the debts that I have incurred to friends and colleagues for their encouragement and criticisms. I am particularly grateful to Richard Brooks, Alan Cairns, Claude Couture, Alain-G. Gagnon, Cole Harris, Ken McRoberts, Stephen Newman, Klaus Petersen, Richard Vernon, and John Whyte. An earlier version of chapter 6 appeared in Hamish Telford and Harvey Lazar, eds, Canadian Political Culture(s) in Transition (Montreal: McGill-Queen’s University Press, 2002). Parts of chapter 5 and all of chapter 2 appeared in the Canadian Journal of Political Science in 2015 and 2017, respectively. Permission to reprint this work is gratefully acknowledged. I would also like to thank Philip J. Cercone, executive director of McGillQueen’s University Press, for the interest he has taken in the manuscript. Kathryn Simpson was a superb copy-editor and Celia Braves skilfully prepared the index. Three anonymous reviewers provided very helpful criticisms and suggestions. However, I alone am responsible for any errors of fact or interpretation that may remain in my analysis of Canada’s many-sided engagement with constitutionalism.

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Can ada a n d t h e E t h ic s o f Consti tuti onali sm

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1 The New Canada, the Old Canada, and The Spirit of Haida Gwaii Three Images of the Canadian Constitutional Faith C a n a da a n d t he Questi on o f C o n s t it u t io nal Fai th A constitution is not just a piece of paper. Nor is it simply for the use of lawyers and judges. The best known and most imitated constitutions, such as the written US Constitution and the partly unwritten British Constitution, have inspired a constitutional faith. Magna Carta is one of the most arcane documents of medieval England, yet it is also the cornerstone of English liberty and British constitutionalism. It was confirmed at least fifty-five times and is as familiar to English school children as Shakespeare and the Bible. Without it, the English people, and many others, might not have come to know the benefits of “a reign of law” and the power of kings, tyrants, and even democratic governments would have been considerably more difficult to regulate or control.1 The US Constitution is not any less important to the American people. In his Farewell Address – which ranks with the Declaration of Independence and the Gettysburg Address as an expression of the American constitutional faith – George Washington said that the Constitution was “sacredly obligatory” because it was based on the sovereignty of the American people, and because it was “a main Pillar” of American independence and American prosperity. He also insisted that the American people had been entrusted with “the preservation of the sacred fire of liberty, and the destiny of the republican model of government.”2 What, then, can be said about Canada and its constitution? And is there a Canadian constitutional faith?

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Canada and the Ethics of Constitutionalism

The simplest answer is to say that there is no such thing as a Canadian constitutional faith because Canada is a pluralistic, multinational country and Canadians are frequently unable to agree about constitutional fundamentals as shown by the failure of the Meech Lake and Charlottetown Accords. But such an answer leaves too much unsaid to be entirely satisfactory. Canadians have not embraced a comprehensive or all-encompassing constitutional faith, but they have articulated powerful visions of Canada that contain the elements of a Canadian constitutional faith. Moreover, since Canada has existed for a long time, and has been at least partly successful in coming to terms with its diversity, questions about a Canadian constitutional faith seem inescapable. In this regarded, the most unsettling challenge to the idea of a Canadian constitutional faith comes not from the failure of two mega constitutional initiatives, but from the highly influential meditations on Canada by George Grant in Lament for a Nation. Grant believed that contemporary Canada had lost its historic identity and foundational values and was rapidly becoming a junior member of the American empire. The only destiny that awaited it, he argued, was formal absorption into the United States at some future date. But Grant’s lament is not an uncontested view. Just as influential, if not more so, is Pierre Trudeau’s imagining of a post-Charter Canada based on inalienable rights. There are also Aboriginal imaginings – like the two-row wampum belt and The Spirit of Haida Gwaii – which seek to reshape the Canadian mosaic and more fully accommodate the rights of Indigenous peoples as partners in Confederation. Such diverse imaginings of Canada add depth and complexity to discussions of the Canadian identity and rekindle questions about the Canadian constitutional faith.

Pie r r e T ru d e au a n d t he New Canada Pierre Trudeau was Canada’s prime minister during one of the nation’s most turbulent eras.3 Whatever his aspirations as a onetime public intellectual turned statesman, he was too polemical a thinker to be a modern Solon or a Platonic ruler. However, no one was more passionate about Canada or did more to compel Canadians to engage in serious reflection on fundamental issues.4 He ranks with Macdonald as a principal architect of the Canadian constitution and was also one of its most controversial theoreticians. The young Trudeau, who almost no one knew, was for a short time a Quebec separatist and

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Three Images of the Canadian Constitutional Faith 5

contemplated the use of violence to achieve the goal of an independent Quebec.5 The older Trudeau rejected Quebec separatism as well as radical devolution of power to the provinces, celebrated Canadian pluralism within a united Canada, and shortly after he left office identified the destiny of Canada almost exclusively with the Charter of Rights. Even the mature Trudeau was, however, something of a mystery. From his autobiography, it is evident that he dreamed about Canada, but his dream did not remain the same.6 He once described Canada as a country with two official languages but no official culture, celebrated the fact that Canada was a mosaic rather than a melting pot, and hoped that Canadian federalism would become a model for tomorrow’s world.7 Later, he emphasized the overriding and even singular importance of the Canadian Charter of Rights and Freedoms and insisted that the entrenchment of “inalienable rights” provided Canadians with a new beginning and a firm identity capable of uniting them.8 Still later, in the debate over the Meech Lake Accord, he worried that Canadians would have to “say goodbye to the dream of one Canada,” emphasized that Canada was not immortal, and said that “if it is going to go, let it go with a bang rather than a whimper.”9 In his Memoirs, Trudeau again reflected on Canada. A country, he said, is “built every day out of certain shared values” and it is for each and every Canadian to build “the country of the future.” In saying this, he seemed to recognize the impermanence of his or anyone else’s vision of Canada. Nevertheless, for a time “the Canadian people and I,” he concluded, “did dream together.”10 Trudeau’s vision of Canada evolved over three or more decades and there is no detailed or definitive statement of it. Nevertheless, no account would be adequate that ignored the years well before he became prime minister and even before he became active in the public life of Quebec. The really formative years for him were the ones that he spent in advanced studies at Harvard coupled with briefer periods in Paris and London during the 1940s.11 Trudeau insisted: “my basic philosophy was established from that time on, and it was on those premises that I based all my future political decisions; it was that philosophy that underlay all my writings.” Harvard was a great intellectual adventure for him and “an extraordinary experience”; it was there that he realized that his earlier education had been limited, that Montreal was “rather parochial,” and that Quebec “was living outside of modern times.” His studies at Harvard also confirmed his beliefs

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Canada and the Ethics of Constitutionalism

about individual freedom, namely, that “every human must remain free to shape his own destiny.” Nevertheless, he did not accept “the doctrine of absolute liberalism” but recognized the need to reconcile individual liberty with social justice so as to include principles of well-being initially articulated by Jacques Maritain and Emmanuel Mounier in France and by T.H. Green and the Fabians in England. After Harvard, Paris, and the London School of Economics there were travels in Asia, which he undertook partly as preparation for writing his doctoral dissertation and even more “to complete the process of discovering the world.”12 Before Trudeau dreamed of Canada, he discovered the modern world and realized that Quebec was not part of it. He especially worried about Quebec’s destiny. No subject is more important to French Canadians or the Quebecois people. It is not a subject on which there is unanimity but there is a traditional understanding that received almost classic treatment in Monsignor Paquet’s “A Sermon on the Vocation of the French Race in America,” delivered in 1902. Mgr Paquet insisted that every people had a vocation and he warned that nations that lost sight of their mission “run madly toward the abyss.” Moreover, the French race in America was entrusted with a “social priesthood” granted only to select peoples. “Our mission,” he said, “is less to handle capital than to simulate ideas; less to light the furnace of factories than to maintain and spread the glowing fires of religion and thought.” He recognized that many obstacles stood in the way but he did not doubt that they would be overcome. In this regard, he reminded the French people of Quebec of “our brothers in Acadia, whose patriotism, adherence to the faith, love of their language, and unconquerable steadfastness … God has rewarded … with constant increase in their numbers and influence.” He also recalled that the people of ancient Greece occupied a simple strip of land and numbered scarcely a few million, yet no other people of antiquity achieved more in the arts and letters.13 Quebec’s destiny was similarly analyzed and proclaimed in Canon Groulx’s “If Dollard Were Alive Today” and in Mgr Laflèche’s “The Providential Mission of the French Canadians.”14 Trudeau’s response was to expose the darker side of Quebec’s “social priesthood” and, in particular, its deleterious effects on economic well-being and political accountability. In his contribution to a book on the momentous Asbestos Strike – in which he had also been a sympathetic outside participant – Trudeau analyzed the dominant

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ideas of Quebec society at that period and insisted that “our social thinking was so idealistic, so a priori, so divorced from reality, in sum so futile that it was hardly ever able to find expression in living and dynamic institutions.” In the first half of the twentieth century Quebec had become an industrialized society, yet the prevailing social thinking was incapable of coming to terms with this transformation. As a result, the Asbestos Strike provoked a major crisis in the province and also revealed deep flaws in the traditional accounts of Quebec’s destiny. “We could no longer find relevance in our ideologies,” Trudeau wrote. “Bullied by the forces of modern capitalism and beset by foreign influences, we were displaced persons in the modern Capernaum where the family, the neighbourhood and the parish … no longer offered the same help.”15 The consequences for politics were even worse. Maurice Duplessis ruled Quebec using corrupt political practices, yet claimed divine sanction for his authority and insisted that it must not be criticized. Not only did Trudeau reject such claims, he also insisted that the people of Quebec must put an end to their voluntary servitude and transform their society into a living democracy.16 “We want,” he wrote, “to bear witness to the Christian and French fact in America. Fine; so be it. But let’s get rid of the rest.”17 Quebec could accept or even wholeheartedly embrace modernity, as in fact it eventually did, yet a great conundrum about its destiny would remain unresolved. What was to be its relationship to the rest of Canada? Trudeau entered federal politics in an attempt to answer that question and his answer is what constitutes his dream or vision of Canada. However, his answer is many-sided and changed over the years. It relies on the principles of individual liberty and social justice that he first fully embraced while a graduate student at Harvard, Paris, and London. It also incorporates arguments about nationalism, federalism, and individual rights that he developed in the early 1960s. In “New Treason of the Intellectuals” and “Federalism, Nationalism and Reason,” published in 1962 and 1965 respectively, Trudeau again considered Quebec’s destiny. He started from the premise that Quebec and Canada were part of the modern world and the most important question was to determine their relationship. Moreover, he defended three theses: two negative theses and a positive one. His first negative thesis is that Quebec separatists, despite their affirmation of democracy and socialist humanism, have in fact betrayed those very values due in large measure to “the totalitarian outlook of some, the anti-­Semitism of others, and the complete ignorance of economics of all of them.”

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His second negative thesis is that the principle of national self-­ determination, if applied logically, is self-destructive and a recipe for endless fragmentation within Canada and within Quebec. As for his positive thesis, it consists of the claim that the only viable option for Quebec and Canada is federalism founded on reason, which he ultimately identifies with functionalism in politics.18 “Federalism, Nationalism, and Reason” was not Trudeau’s last word on Quebec’s or Canada’s destiny. In Conversation with Canadians, Trudeau spoke often and passionately about his dream or image of Canada. “Our image,” he said in a speech as prime minister, “is of a land with many people … but a single desire to live in harmony.” “True greatness,” he added, “is not measured in terms of military or economic aggrandizement.” Rather, “the most desirable of all characteristics is the ability and desire to cohabit with persons of differing backgrounds, and to benefit from the opportunities which this offers.” In the same speech, Trudeau also explained that “the mosaic pattern … makes Canada a very special place.”19 What Trudeau said in this speech is far from vacuous. It also articulates a Canadian dream that differs significantly from the American dream. But it is not the only possible dream of Canada, as Trudeau’s own writings demonstrate – and, in any case, the policies and constitutional measures that Trudeau advocated were quite controversial.20 That is why Canadians just as committed to Canada and to the “mosaic pattern” as he was were still unwilling to accept his initial negative assessment of the rights of Aboriginal Canadians, or his abiding opposition to special status for Quebec, or his subsequent identification of the Charter of Rights with the destiny of Canada. “For those …who dreamed of the Charter as a new beginning for Canada,” Trudeau wrote in 1987 as Canadians debated the (failed) Meech Lake Accord and Quebec’s status as a distinct society, “there is to be nothing left but tears.”21 Trudeau’s dream of Canada was challenged again by the (failed) Charlottetown Constitutional Accord in 1992, by the nearly successfully sovereignty referendum in Quebec in 1995, and by the Supreme Court’s ruling in the Quebec Secession Reference in 1998. “Canada,” wrote one constitutional scholar, “is on the brink of fracturing.”22 Others insisted that the agony of Canada’s constitutional odyssey showed that “Canadians … could exercise their constitutional sovereignty in a negative way, but … were far from being able to act as a sovereign people in a positive away and reach agreement on their

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ideal constitution.” The hope was also expressed “that it would be a long time before Canadians were put to such a test again.”23 Still others believed that although Canadians were “understandably reluctant to contemplate any new effort to achieve change,” the demands of Quebec and the West could not be likely achieved “except in the constitution.” Moreover, in a troubled world, it would be “a tragic failure” if Canada did not continue to be an example of what can be achieved “by tolerance, compromise, and enlightened leadership.”24 None of this, however, diminished Trudeau’s growing reputation as the personification of Canada’s constitutional faith or at least of what has been called the new Canada of the Charter. As for the old Canada of Confederation, which never interested him very much, Trudeau insisted early in his career that the time had come “to throw to the winds those many prejudices with which the past has encumbered the present, and to build for the new man.” His dream was to “batter down the totems,” to “break the taboos,” and to be “coolly intelligent” in designing a new Canada for a new world.25

G e o r g e G r a n t a n d t he Old Canada The old Canada – the Canada that Trudeau does not personify – is a difficult subject. There is, however, an important and controversial book about it that rivals Trudeau’s account of Canada’s destiny and was first published in the same year as his essay on reason in politics. In Lament for a Nation, George Grant recalled the Canada of Macdonald, described a way of life based predominantly on traditional conservative values, and insisted that with their erosion in the face of modernity Canada had not only lost its identity but had become an appendage of the United States and the American empire. Moreover, Grant’s purpose was not to persuade Canadians to return to the old ways but to awaken them to their present reality and their dismal prospects. In this regard, his fundamental objective was to expose the illusions of progress and the consequences of a conception of human nature that defined the human essence in terms of self-creating freedom. Stated ideologically, his purpose was to unmask the fallacies and dangers of technological liberalism and recall the insights of a traditional conservative philosophy based on a proper understanding of moral limits and religious truth. In Lament for a Nation he warned Canadians – who associated liberalism with a future utopia, world peace, and the realization of human rights – that liberalism’s real

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exemplar was the United States, which dreamed of capitalism, stockpiled nuclear weapons, and engaged in imperialist wars.26 In later works, such as Technology and Justice, Grant accepted that Canada was part of the American empire and attempted to unravel its fate in the technological age where human destiny, he insisted, is increasingly controlled by cybernetics and is increasingly dehumanized.27 Two Canadian liberals figure prominently in Grant’s lament for Canada – Mackenzie King for his failure of vision and Pierre Trudeau for his naivety. King mistakenly supposed that the real threat to Canadian independence came not from the United States but from Great Britain. As prime minister, he promoted close ties with the United States and “was sufficiently held by liberal theory to believe that the United States was a democracy, and therefore not in essence an imperial power like the old societies of Europe.” King admired Roosevelt – yet Roosevelt, wrote Grant, was “one of the great imperialists of American history.”28 As for Trudeau, most of his political career was still ahead of him when Lament for a Nation appeared in 1965; but he was, among other things, the co-author of a widely read manifesto on the future of Canada that Grant discussed. The manifesto begins by noting that “Canada today is a country in search of a purpose,” and goes on to affirm “faith in man” as well as the need for “policies better adapted to our world and our times.” The recommended policies range from better health care to greater investment in human capital to greater acceptance of various forms of political, social, and economic universalism.29 Grant criticized Trudeau and the other authors for “asserting faith in universalism and in the continued existence of Canada at one and the same time.” Why should a universalist, he asked, stop at the point of Canada? “Do they know,” he also asked, “that liberalism in its most unequivocal form … includes not only the idea of universalism but also that of homogeneity?”30 “Trudeau,” Grant wrote privately, “has always seemed to be a gentlemanly kind of person … [but] I distrust his distrust of traditional French Canada and I fear his naivety about the nature of Englishspeaking society.”31 Then came the f l q crisis and the proclamation of the War Measures Act. In an address to the Canadian people, Trudeau expressed regret for the suspension of civil liberties but justified the measure on the ground that a democracy like Canada provided ample means for legitimate political change and could not tolerate bombings and kidnappings, which undermined not only law and order but the democratic process.32 Grant took a different view. He

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assumed that the government already had sufficient powers to deal with the situation and focused instead on the implications of using emergency measures. “For many English-Canadians,” Grant wrote, “Mr Trudeau was that happy phenomenon ‘A Frog who could deal with the Frogs.’” But extreme measures, he continued, would not guarantee the unity of Canada or the defeat of the separatist movement in Quebec. Moreover, Grant believed that “the two main questions of Canadian life [had] come together.” As he saw it, “the possibility of some freedom in the American Empire” and “some potential modus vivendi between English-speaking and Frenchspeaking Canadians” were mutually interdependent. Grant speculated, however, that a new modus vivendi might not be possible in view of the invocation of the War Measures Act and then added that French Canadian nationalists might do well to concentrate on their own cultural survival as best they could and dismiss English-Canada as a “Trojan Horse for … the North American monolith.”33 Although Grant distrusted Trudeau’s distrust of traditional French Canada and much else as well, he was never sanguine about Quebec’s prospects in the age of technology. In the second edition of Lament for a Nation, Grant quoted Bourassa’s slogan “American Technology, French Culture” and dismissed it. He also reiterated his bleak conclusions about “the fate of any particularity in the technological age.” Grant’s lament was not just for English Canada but for what he called the original dream of Canada. “To be a Canadian,” he wrote, “was to build, along with the French, a more ordered and stable society than the liberal experiment in the United States.” Or, as he also stated: “The early leaders of British North America identified lack of public and personal restraint with the democratic Republic. Their conservatism was essentially the social doctrine that public order and tradition, in contrast to freedom and experiment, were central to the good life.”34 In Grant’s estimate, the old Canada represented both a moment in historical time and a crucially important philosophical orientation toward the meaning and purpose of life that affirmed the existence of timeless truths not dependent on human will and human experimentation. “I am,” Grant said, “primarily a philosopher, and one who has decided that modern political philosophy … is, at its centre, false.” He went on to say: “The little book I wrote about Canada … was not written as a practical political book, but to point to what lies beyond and is more important than the political, namely the eternal order.”35

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For Grant, the eternal order was most profoundly exemplified in the metaphysical and religious teachings of Plato and Christ; its historic and existential exemplars, however, were Macdonald, Confederation, Toryism, and Roman Catholicism.36 Others, besides Grant, have provided Tory accounts of the old Canada and have also contrasted it with the American experiment in freedom. They have not identified it in any significant way, though, with Plato or Christ or even with Richard Hooker, whom Grant also cited.37 Instead, their usual focus has been almost exclusively on political considerations and on Macdonald’s desire to retain the British connection, to perpetuate monarchical institutions, and to create a highly centralized federal system that would have none of the defects of the American model.38 In the Confederation debates of 1865, Macdonald insisted that the framers of the US Constitution had begun at the wrong end by declaring each state a sovereignty in itself. He then added: “We have adopted a different system. We have strengthened the General Government. We have given the General Legislature all the great subjects of legislation … [and] have thus avoided that great source of weakness … in the United States.”39 When Confederation is identified exclusively with this passage in Macdonald’s 1865 speech, the spirit of Canada becomes a Tory conception of “peace, order, and good government” and the contrast is with a libertarian interpretation of the American commitment to “life, liberty, and the pursuit of happiness.” Moreover, if Confederation is equated with centralizing power, it is also possible to identify the old Canada with the spirit of Hobbes. “The delegates to the Quebec Conference,” it has been suggested, “believed that their most important achievement was the establishment of a strong central Parliament and government (following Hobbes).”40 As an account of Canada’s destiny, the Tory political interpretation leaves out important dimensions of Canadian pluralism, as Cartier and others noted in the debates of 1865. Moreover, if the changes and constitutional crises after 1867 are highlighted, the Tory interpretation also becomes, to use a Shakespearean image, “a tale” of a country “that struts and frets [its] hour upon the stage.”41 In constitutional terms and simpler language, it is a narrative about the defeat of Macdonald’s centralism and the failure of Confederation.42 As for the Charter of Rights, it is portrayed in the Tory account not as a possible development of aspects of the Canadian identity but as the final unravelling of Confederation in imitation of the American model

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and American-style judicial supremacy. The unravelling begins, in this account, shortly after Confederation with the rise of provincial rights movements, it is carried forward by the decentralizing decisions of the Judicial Committee of the Privy Council, and one of the bleakest moments in Canadian history is the act proclaiming the Charter of Rights. Canadians are envisaged either as “clinging to the wreckage” or as coping with government by judiciary, while contemporary political leaders are criticized as poor custodians of the Canadian political tradition.43 The Tory narrative is a one-sided account of Canadian pluralism, but it is also, in its most sophisticated version, a probing critique of atomistic individualism and a haunting image of a traditional, anti-modern constitutional faith.

Ca n a d ia n A b o r ig in a l s and the Des ti ny o f   C a n a da Although Canadian Aboriginals think first and foremost about their own destinies, they too have reflected on the identity and destiny of Canada. They reject Macdonaldian centralism and have little interest in restraining Canadian judges partly because they have benefited from many (but not all) of their decisions in the contemporary era.44 They also take a complex view of the Charter of Rights. As for Confederation, they were once its victims but increasingly ask to become partners in it. In Canada and the Canadian Question, published in 1891, Goldwin Smith argued that neither Canada nor Canadian Aboriginals had a future. Canada, he insisted, was a geographical absurdity and not even the beginnings of a Canadian identity existed. He was also among the first to call for union with the United States but met with strong opposition from those who believed that Canada’s destiny could only be realized in an Imperial Federation or as a completely autonomous country. Some even expressed shock that such a thing could be so “coolly proposed” as if Canada was nothing more than “a card castle.”45 As for Canadian Aboriginals, Smith insisted that “the race … is doomed,” a view shared by almost all non-Aboriginals at the time. It had fallen, he believed, “into the gulf between the hunter state and that of the husbandman” and whiskey had contributed to its ruin. “Ethnologists,” he concluded, “may find it instructive to study a race without a history and without a future; but the race will certainly not be a factor in New World civilization.”46 Almost no one expressed shock at what Smith had to say about the

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“Red Indian,” yet few prophecies have been more decisively refuted by subsequent events. Canadian Aboriginals have not disappeared. In fact, First Nations have become one of the most dynamic influences in Canadian constitutionalism.47 Nor is their influence confined to court cases, treaty commissions, and government reports. To be sure, Indigenous peoples assert their rights in a variety of political and legal forums, practise civil disobedience from time to time, and occasionally forcibly occupy land that they believe belongs to them. But they also engage in intellectual debates, challenge orthodoxies, and articulate alternative understandings of Canada. One such engagement is Harold Cardinal’s classic study The Unjust Society: The Tragedy of Canada’s Indians, written in reply to the Trudeau government’s controversial 1969 White Paper on Indian Policy. The White Paper, Cardinal insisted, was “a thinly disguised programme of extermination” that did not take seriously the treaty and other rights of Canadian Aboriginals and had as its undisclosed premise that “the only good Indian is a non-Indian.” Cardinal was not a separatist. Indians, he said, liked the mosaic idea and wanted to be recognized as part of it. Moreover, he did not think that the idea of two founding peoples was tenable for Canada because it excluded the founding status of Indians. Identity was just as important to the Indian as it was to the Quebecois, and being Canadian did not simply mean “white is right.” The challenge for Indians today, he said, was both to reject assimilation and “to redefine [their] identity in contemporary terminology.” Canada remained important, he insisted, but “the Indian cannot be a good Canadian unless he is first a responsible and a good Indian.”48 The White Paper was eventually withdrawn. As Trudeau explained, “we had perhaps the prejudices of small ‘l’ liberals, and white men at that.”49 Whatever else can be said about the Constitution Act, 1982 and its implications for Canadian constitutionalism, it represents a significant commitment to the rights of Canadian Aboriginals and a fulfillment of at least some of their long-standing aspirations. Section 35(1) states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” But the provision is not self-interpreting. Nor has its adoption relegated liberal political theory to the intellectual dustbin. If anything, liberalism has revitalized itself and responded both by absorbing Aboriginal rights as in the writings of Will Kymlicka (liberalism as justification) and by providing a comprehensive critique of them as in the writings of Tom

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Flanagan (liberalism as critique). In both cases liberalism’s focus is on the Aboriginal right to self-government, which is unquestionably the most important component in historic and contemporary accounts of the rights of Aboriginal peoples – whether or not it is a component of section 35(1) as originally conceived. The right to self-government does not by any means exhaust the rights of Aboriginals and it has ­limited relevance for Aboriginals living in Canadian cities.50 Nevertheless, it is widely regarded by virtually all parties as the linchpin in the edifice of Aboriginal rights and has received strong endorsement from the Royal Commission on Aboriginal Peoples (1996) and in Our Nations, Our Governments: Choosing Our Own Path (2005).51 More than any other aspect of the Aboriginal rights debate it also brings into sharp focus the question “what is Canada?” Pierre Trudeau had something to say about that question, as did George Grant and John A. Macdonald. So do Canadian Aboriginals and so do the Canadian liberals who justify or critique the right to Aboriginal self-government. What liberalism as justification grants, liberalism as critique takes away, and neither is regarded as satisfactory by Canadian Aboriginals. Liberalism as critique confronts what it describes as the new orthodoxy, namely the belief that Aboriginal self-government solves Aboriginal problems and ushers in a new dawn for a once-oppressed people. But, according to liberalism as critique, the facts, assumptions, and consequences of Aboriginal self-government reveal a different story. “Aboriginal government,” Flanagan contends, “is fraught with difficulties stemming from small size, an overly ambitious agenda, and dependence on transfer payments. In practice, aboriginal government produces wasteful, destructive, familistic factionalism.” Such a criticism partly draws on James Madison’s famous critique, during the founding debate on the US Constitution, of the small republic theory and his insistence that the greatest tyrannies exist in small societies. In the case of Aboriginal self-government, Madison’s strictures, Flanagan contends, apply with even greater force, given the existence of communal ownership of property and reliance on transfer payments that impede individual responsibility and perpetuate a rentier mentality. Moreover, although the new orthodoxy incorporates historical claims about the original ownership of land and comprises a consistent worldview, it is nothing less, Flanagan writes, than a “stop sign for human progress” because of the inherent problems associated with Aboriginal self-government and the failure to realize

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that the development of civilization requires individual initiative and an open society. As for Canada, it does not entirely disappear with the advent of the new orthodoxy but is transformed into “a modern version of the Ottoman Empire” and a “strange multiplicity” takes the place of “the achievements of Western liberal democracy.”52 The other side of contemporary Canadian liberalism – liberalism as justification – argues for the rejection of assimilation, celebrates multicultural citizenship, and endorses Aboriginal self-government. Its starting point is the belief that individuals are the ultimate units of moral worth. It also insists that societies with more than one culture cannot simply impose the way of life of the dominant culture without violating the liberal precept of equality and without undermining the value of individual life-plans. Because culture is part of the context of choice, vulnerable or disadvantaged cultures require special protections. In some cases, as with immigrants, official multiculturalism may be enough. In other cases, more is demanded. “The greatest challenge to our everyday notion of citizenship,” Kymlicka writes, “comes from the constitutional recognition of aboriginal rights.” The way liberalism can meet the challenge of Aboriginal self-government, he suggests, is by recognizing that Aboriginal communities are disadvantaged cultural communities and, as such, are entitled to protect their way of life from outsiders but are not entitled to impose it coercively on their own members. Minority rights are thereby respected while assimilation is rejected, and liberalism demonstrates a deep concern for “the fate of cultural structures” as part of its commitment to individual freedom and self-reflection.53 What about Canada’s fate? Its fate as a multinational state is less certain in Kymlicka’s theory partly because liberals have not (yet) been able to determine what holds it together. Besides, Canadians with liberal leanings should not automatically oppose the breakup of Canada or the separation of Quebec because there is, he suggests, “every reason to think” that the process would be relatively peaceful and “two [or more] healthy liberal democracies would emerge.”54 For many Canadian Aboriginals, liberalism even in Kymlicka’s comparatively “benign” version is untenable because, in their view, it misdescribes the Aboriginal predicament, neglects the real basis of Aboriginal land rights, and fails to recognize adequately Aboriginal political sovereignty. Even “benign” liberalism, it has been suggested, “is not a peace pipe.”55 Moreover, Canadian Aboriginals have Indigenous ideas about which constitutional framework is most

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appropriate for Canada-Aboriginal relations and frees all Canadians from the limited constitutional vision of 1982 and its lingering colonialist assumptions. An important expression of the Indigenous understanding of Canada is the idea of the “two-row wampum.” Contemporary First Nations people, Ovide Mercredi and Mary Ellen Turpel suggest, view their relationship as a continuation of the treaty relationship symbolized by the Gus-wen-tah or two-row wampum. “The two-row wampum, which signifies ‘One River, Two Vessels,’ committed newcomers to travel in their vessel and not attempt to interfere with our voyage.” It is, they go on to say, a “co-living agreement” built on “equality, respect, dignity, and a sharing of the river” that expresses “how First Nations still understand our relationship with Canadians.” First Nations insist that “no one else has the political or spiritual authority to speak for us” and that as “peoples with distinct cultures, languages, governments, territories and populations … we must be recognized as full and equal partners in the Canadian political system.” They also want to continue the dialogue about the future so that non-Aboriginals will better understand the Indigenous perspective on a new Canada and a genuine partnership capable of “completing the circle of Confederation.”56 The Spirit of Haida Gwaii, a sculpture by Bill Reid, is another Indigenous idea with even broader implications not only for Canada but for contemporary constitutionalism and the age of diversity in which Aboriginal Canadians, French Canadians, multicultural Canadians, and almost everyone else on the planet increasingly live. In some accounts, the age of diversity is a world in crisis – “things fall apart,” “the centre cannot hold,” and, as in Yeats’s famous poem, a Second Coming is expected in which a “rough beast … Slouches towards Bethlehem to be born.”57 In other accounts, what lies ahead is the abyss or the clash of civilizations.58 In still other scenarios, the age of diversity is also the age of globalization; it represents both a runaway world and a vigorous push toward new forms of democratic self-rule in an increasingly integrated global economic and communications network.59 The Spirit of Haida Gwaii, which portrays a bewildering variety of paddlers and passengers crammed into a Haida canoe, is part of this dialogue of the future. Its simplest and most profound message is that “we are all in the same boat.” What is less evident is where the canoe is heading. In a sustained and comprehensive study of diversity, Jim Tully takes The Spirit of Haida Gwaii as his symbolic starting point. The times, he suggests, are “dark and

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discordant” but the way ahead is not to make one more appeal to the assimilationist assumptions of modern Western constitutionalism. Rather, “the only way to lessen the darkness and discord” is to accept diversity and “to take up the responsibility to speak in the dialogue initiated by The Spirit of Haida Gwaii.”60 The contemporary world, Tully suggests, is a “strange multiplicity” in which culture as “an irreducible and constitutive aspect of politics” confronts modern constitutionalism. The philosophical foundation of modern constitutionalism, he goes on to say, includes Hobbes’s fear of multiplicity, Locke’s colonialist theory of property rights, and Kant’s universalization of European republican institutions. The result is a theory of constitutionalism that postulates a monolithic conception of popular sovereignty, imagines a state in possession of an individual identity, and attempts to progressively displace all other forms of constitutionalism, including ancient constitutionalism, common law constitutionalism, and Indigenous legal pluralism. Modern constitutionalism, however, is a failure: at home, because of its homogenizing effects; abroad, because it exploits Indigenous legal and political cultures. It is especially inhospitable to the demands for recognition by women, multicultural groups, and Aboriginals that are a prominent feature of the contemporary world and that are ultimately demands for self-rule and belonging. As for the American constitution, it does not embody universal truths but is one of “the guardians of empire today.” Nevertheless, the remedy is not to abolish constitutionalism as such but to reconceptualize it along the lines suggested by The Spirit of Haida Gwaii so that the principles of mutual recognition, consent, and continuity become essential features of a viable constitutionalism and the strange multiplicity of the contemporary world is thereby accommodated. Moreover, the accommodation takes place in actual dialogue that occurs again and again. “The Spirit of Haida Gwaii,” Tully writes, “evokes one final and immensely optimistic vision of cultural diversity. For all the celebration of diversity and vying for recognition, the paddles are somehow in unison … [and] the ship of state glides harmoniously into the dawn.”61 Canadian Aboriginals articulate potent ideas about the right or best constitution; they also figure crucially in referendums on the future of Canada. When Quebec held its 1995 referendum on sovereignty, the James Bay Cree people asserted that they were a distinct nation, held their own referendum, and voted by overwhelming majorities to remain in Canada. Later, they participated in the Quebec

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Secession Reference and asserted, among other things, that a significant part of the territory claimed by Quebec belonged to them.62 The Supreme Court acknowledged the abstract legitimacy of their territorial claims and also affirmed that their rights, whether considered alone or in conjunction with other minority rights, were “an important underlying constitutional value.” All in all, the Court identified four fundamental principles as forming the “internal architecture” of the Canadian constitution; namely, federalism, democracy, constitutionalism and the rule of law, and the protection of minorities. Culled simultaneously from Confederation and the Charter, these four principles, the Court said, imposed a duty on all parties to negotiate fundamental change, including the possible breakup of Canada. The four principles also acted as constraints. A political system must be capable of reflecting the aspirations of the people. “But there is more,” the Court said. “Our law’s claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the ‘sovereign will’ or majority rule alone, to the exclusion of other constitutional values.”63 As for Canada’s future, the Court left it to others, including Canadian Aboriginals, to determine how it would unfold.

The Spirit of Haida Gwaii and the Ques ti on of   t h e C a n a d ia n C o n s ti tuti onal Fai th The Canadian Constitution, as the Supreme Court insisted in the Quebec Secession Reference, is infused with moral principles that sustain a complex structure. But an internal architecture, even one sustained by important moral principles, is not a complete constitutional faith. The missing element was identified – at least in part – by Justice Frankfurter in his discussion of the American constitutional faith. “American citizenship,” he said, “implies entering upon a fellowship which binds people together by devotion to certain feelings and ideas and ideals summarized as a requirement that they be attached to the principles of the Constitution.”64 Justice Frankfurter did not speak for all the judges, and there are many Americans who are deeply aware of the failings of their constitution, such as the persistent problem of racial discrimination, which the American Civil War failed to eliminate. That is why many Americans refuse to subscribe to an unthinking constitutional faith or express agreement with Justice Holmes’s opinion that “it cannot show lack of attachment to

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the principles of the Constitution … [to think that] … it can be improved.”65 The vital challenge for Americans, it has been suggested, is to ensure that their real or alleged constitutional faith does not become an “ideological charade” by endorsing too restrictive a conception of “we the people” or too static a conception of the constitution.66 Ultimately, the core premise of the American constitutional faith is the American people. What it presupposes, as the preamble to the US Constitution proclaims, is that “we the people” can and will “establish justice,” “promote the general welfare,” and “secure the blessings of liberty” for all Americans. Canada is different, partly because the Canadian Constitution cannot take for granted anything like the American idea of “we the people” and also because, unlike Americans, Canadians do not regard “the blessings of liberty” as the overriding objective of their constitutional endeavours or the defining element of their identity.67 Because of these differences, The Spirit of Haida Gwaii could never serve as a symbolic representation of the American constitutional faith or America’s destiny, but it reveals a good deal about Canada and its ideals. Like the idea of the two-row wampum belt, it is a valuable portrayal of Canadian pluralism and a brilliant Aboriginal conceptualization of the Canadian mosaic. In Canada, federalism, multiculturalism, and minority rights are part of a mosaic because they are expressions of deep diversity and different ways of life. The United States, on the other hand, is better understood as a modernistic and sophisticated melting pot, because the diversity element of American federalism and the American strand of multiculturalism are primarily about guaranteeing freedom to “we the people.” Moreover, the mosaic idea and The Spirit of Haida Gwaii both imply ideological pluralism and ideological pluralism, as Gad Horowitz and others have shown, is more characteristic of Canada than of the United States.68 As a result, attempts to characterize Canada in terms of a single political value or a monolithic political ideology are inherently problematic. Nowhere is this more apparent than in discussions of Confederation that privilege Macdonald’s “new Tory” conception of it.69 When Confederation is described primarily in terms of “the British connection” with a sharp focus on “peace, order, and good government,” what is often neglected or minimized is that Confederation also had to grapple (however imperfectly) with a deep cultural and ideological pluralism that made Canada unlike the United States and also could

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not be subsumed under British ideas about a single and legally unlimited sovereign parliament or a Tory conception of nationhood. As expressions of pluralism, The Spirit of Haida Gwaii and the wampum belt are Aboriginal images of Canada’s future, but they are also partly rooted in Canada’s past. They even parallel what can be described as the spirit of Confederation if Canada’s original colonialist assumptions and Macdonald’s Tory vision of Canada are not taken to be the final interpretation of the Canadian experiment. Such a change in perspective occurred, in part, in the Quebec Secession Reference when the Supreme Court discussed the significance of Confederation and focused much less on “peace, order, and good government” and much more on federal diversity and minority rights. Even before the constitutional innovations of 1982, the Court said, Canada had a long history in regards to minority and group rights. Certainly “not a spotless one,” but it is “the goal towards which Canadians have been striving since Confederation.” The Court also quoted Cartier’s belief that Confederation promised to bring into existence a new kind of political nationality and a country that accepted pluralism rather than repressed it.70 What Cartier’s new political nationality envisaged was a kind of Canadian constitutional faith, in which cultural diversity flourishes with political community and political friendship.71 At least abstractly similar is the notion that friendship, respect, and interdependence (represented by the white beads) are integral to the Aboriginal wampum belt and breathe life into The Spirit of Haida Gwaii. “These white rows, referred to as the bed of the agreement,” John Borrows explains, “stand for peace, friendship, and respect. When these principles are read together with those depicted in the purple rows, it becomes clear that ideas of citizenship must be rooted in notions of mutuality and interconnectedness.” Cartier identified the spirit of Confederation with a new kind of political nationality; Borrows concludes by conceptualizing a pluralistic Canada that, like the wampum belt and The Spirit of Haida Gwaii, is “somewhat unique among Western nations in constitutionally embracing a differentiated theory of citizenship.”72 One way Canadians differ from Americans is that they are more inclined to quarrel over their constitution than to celebrate it. For the long-term viability of a deeply pluralistic country like Canada, however, a tradition of criticism and reflection can be even more important than a celebratory narrative about military victories and divinely

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inspired lawgivers. Moreover, Canadian history also contains periods of significant co-operation and baffling constitutional creativity that break through the frameworks of British and American constitutionalism. “In our constitutional practice,” a constitutional scholar has noted, “we have often fashioned workable structures for accommodating difference, but in our constitutional theory we have failed to see how those structures were good or how they could work together to make a country.”73 The failure is only a partial failure. It is most evident in accounts of Canada that focus too much attention on Tory conceptions of “peace, order, and good government,” and in the reluctance among some Canadians to accept special status for Quebec or self-government for Aboriginal nations. The failure is less evident in Cartier’s image of a new Canadian political nationality and in Aboriginal imaginings of Canada as a mosaic partnership. There is, finally, the consideration that since Canada has existed for a long time, Canadians may be better at practising their constitutional faith and the fellowship it implies than at theorizing it or celebrating it.

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2 The Charter of Rights, the British Connection, and the Americanization Thesis Toward a Montesquieuean Analysis of Rights and Their Protection T h e B r it is h C o n n e c ti on Revi si ted The Charter is a Canadian paradox. Pierre Trudeau believed that a Charter of Human Rights would provide Canadians with a new beginning and strengthen national unity by settling difficult questions about the Canadian identity. “The search for this Canadian identity,” he wrote, “had led me to … the Charter.”1 But Canada’s unity and identity remain fragile, contested, and elusive. Moreover, those who opposed the entrenchment of rights even believed that Trudeau’s proposal represented a defeat for the Canadian identity and a step toward the Americanization of Canada. Confederation, they insisted, had “hoped to preserve the British connection” and it was far removed from doctrines of “natural rights” that inspired the American Revolution.2 For them, Canada was committed to traditional and conservative British values of the kind incisively described by George Grant in Lament for a Nation, and to British modes of governances built on parliamentary institutions and parliamentary sovereignty as classically portrayed by Walter Bagehot and A.V. Dicey. A Charter of Human Rights, they insisted, represented a significant shift toward an aggressive and atomistic rights-conscious liberal individualism characteristic of American-style judicial supremacy, and institutionalized the kind of government by judiciary that was familiar under American constitutionalism.3 In response, supporters of the Charter insisted that their concern was with human rights and that the Charter

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finally brought human rights into the Canadian constitution.4 But even if their reply is accepted, a difficulty remains. Since abstract human rights attach to human beings as such, how could their entrenchment settle questions about the Canadian identity or distinguish Canada from the United States? To understand the Charter – either as enacted in 1982 or as originally conceived by Trudeau and his critics – it is necessary to begin not with the Americanization thesis or the debate about judicial supremacy, but with “the British connection,” and to consider how Confederation and the Charter relate to it. But no topic is more easily misunderstood. Canadians assume that they embraced the British constitution at Confederation, while Americans rejected it. To support this claim it seems only necessary to cite the preamble to the b n a Act, which proclaims (in part) the desire of Canadians to have a constitution similar in principle to that of the United Kingdom. No similar desire is expressed in the preamble to the US Constitution. However, these facts tell only part of the story. Canadians emphasized their tie with Great Britain, yet the Confederation Settlement departed in significant ways from English constitutionalism. As for the American Republic, it denounced the tyranny of George III and proclaimed inalienable individual rights in the Declaration of Independence, yet the framers of the US Constitution found much to admire in the checks and balances of the eighteenth-century British constitution and emulated it as far as the circumstances of their society permitted. What, then, is the British connection? What are its implications for Canadian and American modes of governance? And what happened to the Canadian identity and Canadian constitutionalism when the Charter of Rights was adopted? Did Canada, as the Americanization thesis asserts, become more like the United States by forgetting its past, embracing an atomistic rights-conscious individualism, and substituting judicial supremacy for parliamentary supremacy? Even to ask these questions requires a reorientation of constitutional theory away from the abstract theorizing about the state of nature characteristic of early modern political theory and sensitivity to issues first raised by Montesquieu, who Judith Shklar and others have called “the father of [modern] constitutions.”5 Montesquieu provided the classic eighteenth-century account of the British constitution, and exercised enormous influence on the framers of the US Constitution. He also initiated a revolution in method. Rather than focus on hypothetical models and ideal solutions, Montesequieu was, Isaiah Berlin

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noted, “most himself, when he tries to convey a culture or an outlook or a system of values different from his own and from that of the majority of his readers.”6 He was not a monist but a pluralist, and he opposed abstract utopian rationalism in politics and constitutionmaking.7 “Many things,” Montesquieu wrote, “govern men: climate, religion, laws, the maxims of government, examples of past things, mores, and manners; a general spirit is formed as a result.”8 Through him, it is possible to probe “the British connection” and to unravel relationships between the British constitution, America’s compound republic, and the Canadian experiment. In addition, his revolution in method facilitates an understanding of the Charter that connects it to Confederation and distinguishes it from the US Bill of Rights. A Montesquieuean analysis reveals that Canada did not become more like the United States or less like Great Britain when it adopted the Charter. Rather, Trudeau’s initial Charter proposal that combined an abstract theory of inalienable rights and a monistic conception of Canadian citizenship was significantly reshaped by the pluralism of Canada, with the result that the 1982 Charter reflected the mosaic character of Canada itself.9 By contributing to a distinctive Canadian constitutionalism, however, the Charter neither finally established national unity nor finally defined the Canadian identity. Its inability to achieve all that Pierre Trudeau promised should not be altogether surprising. For the Charter is one part of Canada’s pluralistic constitution, and not the whole of it. The Americanization thesis takes too simple a view of the Charter, Canadian constitutionalism, and the British connection. It also relies on a one-sided understanding of American constitutionalism, in which the theory of judicial supremacy postulated in Marbury v. Madison (1803) almost displaces the ideas of the framers about democratic republicanism. In a study of America’s Constitutional Soul, Harvey Mansfield emphasizes the enduring significance of the framers’ constitution. The American framers, he argues, viewed themselves as great lawgivers. Their focus was on “we the people” and they knew that the ancient democracies had easily disintegrated. Their achievement was to formalize and reshape popular government through the institutions of constitutional government, including the separation of powers celebrated by Montesquieu, so that America’s “we the people” would not easily fall prey to demagogues or political passions but would provide a firm foundation for stable, energetic, and deliberate democratic government.10 In Charter versus Federalism, Alan Cairns

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reflects on Canada’s constitutional soul. In Canada, “we the people” is replaced by a fragmented political community. Cairns notes, moreover, that the Charter, the failed Meech Lake Accord, and other initiatives were not just struggles for power between Trudeau, Lévesque, provincial premiers, Aboriginal leaders, and many other political actors. “It was for the possession of our souls,” Cairns writes, “that the contending governments fought.”11 In his attempt to reshape the soul of Canada, Trudeau encountered Montesquieu’s spirit of the laws expressed as Canadian pluralism. If anything, the pluralism of Canada, which left its mark on the institutional structure of Confederation and reshaped Trudeau’s Charter, is too pervasive and important to be reduced to “the British connection” and ideas about parliamentary supremacy or “the Americanization thesis” and theories of judicial supremacy.

Ri g h t s a n d t h e A m e r icani zati on Thesi s Historically, Canadians have both emphasized the British connection and opposed American republicanism. An often-cited illustration is the contrast between the ideal of “life, liberty, and the pursuit of happiness” found in the Declaration of Independence and the commitment to “peace, order, and good government” enshrined in Confederation.12 Not only has this contrast achieved almost mythical status, it also figures prominently in accounts of the Americanization thesis and underpins the belief that the Charter represents a threat to the Canadian identity. In Continental Divide, Lipset insists that “by enacting the Charter, Canada has gone far toward joining the United States culturally.” He admits that the Charter contains unique provisions and discerns continuing differences between Canada and the United States, yet his emphasis is on the Charter as “the most important step that Canada has taken to Americanize itself.” Behind Lipset’s assessment of the Charter is his reconstruction of the United States and Canada as “two countries [that] came out of the American Revolution.” One, “the country of the revolution,” proclaimed “life, liberty, and the pursuit of happiness”; the other, “the counterrevolutionary nation,” embraced “peace, order, and good government.” But with the enactment of the Charter of Rights, Lipset goes on to say, a “striking change” occurred and Canada shifted significantly towards the “American model.”13

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The contrast – “life, liberty, and the pursuit of happiness” versus “peace, order, and good government” – is important, but it cannot bear the weight that Lipset puts on it. Part of the difficulty is that the phrases occur in functionally dissimilar documents: a declaration that dissolves government and a statute that establishes it. Moreover, the Declaration of Independence is not the Constitution. One indication of the gulf between them is that the Constitution did not initially contain a Bill or Declaration of Rights, and its principal architect never became fully convinced of the necessity for one. In a letter to Jefferson, Madison wrote: “I have never thought the omission [of a Bill of Rights] a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others.”14 If, as Madison believed, American constitutionalism is not identical with either the Declaration of Independence or the Bill of Rights, then simple statements about the Canadian Charter as an Americanizing instrument are questionable to say the least. In Madison’s formulation, the essence of American constitutionalism is not “life, liberty, and the pursuit of happiness,” nor judicially enforced rights against government, but a complex theory of the compound republic.15 Once Americans severed their tie with Great Britain, the problem became how to construct the American Union, and no simple appeal to inalienable rights or the pursuit of happiness could solve that problem. Moreover, if Lockean ideas inspired the Declaration of Independence, Montesquieu set the stage for the Constitution.16 In the debate over the Constitution, Montesquieu was repeatedly cited by Federalists and Anti-Federalists because he had identified the problem that most troubled Americans in 1787. In The Spirit of the Laws, Montesquieu wrote: “It is natural that small states be governed as republics; those of moderate size, as monarchies; and that great empires be dominated by despots.”17 Both Federalists and Anti-Federalists believed that Americans formed one people. Both desired a more effectual Union. Both abhorred despotism. Where they disagreed was with respect to the innovations proposed by the Federal Convention. The proposed Constitution, warned Anti-Federalists in language that echoed Montesquieu, would produce “one consolidated government … [and] an iron handed despotism.”18 The Federalist, and especially Madison’s contribution to it, contains the classic reply to the Anti-Federalist critique. It attempted to

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demonstrate that the proposed Constitution violated none of Montesquieu’s principles of freedom. Thus Madison insisted that although the Constitution embodied only a partial separation of powers, it took full account of Montesquieu’s maxim about it.19 Montesquieu, Madison explained, “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.”20 On the contrary, partial agency was necessary to achieve Montesquieu’s goal of constitutional liberty. Hamilton also defended the proposed constitution as based on Montesquieu’s principles. “The opponents,” Hamilton noted, “cited … Montesquieu on the necessity of a contracted territory for a republican government.” But, he added, “they seem not to have been apprised of the sentiments … expressed in another part of his work.” They had overlooked that Montesquieu treats “a confederate republic as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism.”21 The Constitution incorporated many of Montesquieu’s insights, but it also went beyond them. When Hamilton insisted that the Union must possess authority over citizens, he added a new element to Montesquieu’s idea of a Confederate Republic, one that transformed it from a league of governments to a government of citizens.22 It fell to Madison to explain why the transformation did not create ad ­ espotic government.23 In order to do so, Madison went behind Montesquieu’s discussion of a Confederate Republic and criticized the small republic theory that underpinned it. Small republics were praised for their love of liberty and their devotion to self-government. But, said Madison, they provided few securities for freedom, were easily transformed into wretched nurseries of internal warfare, and allowed one faction to oppress all the rest. According to Madison, part of the solution to these difficulties was to embrace the idea of an extended republic. By extending the sphere of a republic, parties and interests would be multiplied and a majority of the whole would have less of a motive to invade the rights of other citizens. For Madison, “this policy of supplying, by opposite and rival interests, the defects of better motives” also applied to the separation of powers and to federalism itself. In the extent and proper structure of the American Union, Madison discovered “a republican remedy for the diseases most incident to republican government,” and a powerful rejoinder to the Anti-Federalist critique.24

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More than anyone else, Madison identified the core premise of the Constitution and reconstructed Montesquieu’s theory. Political liberty, Montesquieu insisted, exists only under moderate government and only if power is not abused. “To prevent the abuse of power, things must be so ordered that power checks power.” Moreover, “there is no liberty, if the power to judge is not separated from the legislative and executive powers.”25 Montesquieu described an intricate separation of powers and a complex system of checks and balances, and found both in the English constitution.26 In the compound republic described by Madison, there is no king, or lords, or even commons. But there is a president, a Senate, and a House of Representatives, which, when combined with a federal system and independent judges, ingeniously institutionalizes in America a version of the model of government that, for Montesquieu, secured liberty in England.27 Although Anti-Federalists were unsuccessful in their opposition to the Constitution, they did secure amendments known as the Bill of Rights. But the Bill of Rights they demanded restricted only the central government and not the states. Moreover, individual rights against government constituted only one of its motifs and not, in their view, its most important feature. “The genius of the Bill [of Rights],” it has been suggested, “was not to downplay organizational structure but to deploy it, not to impede popular majorities but to empower them.”28 Trial by jury, which was a key Anti-Federalist demand, appeared in three of the ten amendments. “Trial by jury,” wrote an Anti-Federalist, “is essential in every free country [because] common people should have a part … in the judicial as well as in the legislative department.”29 As Tocqueville later emphasized, jury trials enabled the American people to learn self-government by doing self-government. Similarly, the right of assembly and the right to bear arms, protected by the First and Second Amendments, were primarily intended to be rights of selfgovernment rather than atomistic rights against government. The Bill of Rights, as demanded by the Anti-Federalists and adopted in 1791, “seems largely republican and collective, sounding mainly in … the public liberty of the ancients.”30 Its sound was frequently un-Lockean and more than one step removed from the liberty of the moderns. Despite their disagreements, Federalists and Anti-Federalists shared the same objective: to strengthen the American Union without institutionalizing despotism and without disempowering the people.31 As a Federalist, Madison defended the idea of a compound republic and

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the checks and balances implicit in it; Anti-Federalists, by contrast, favoured devices that more directly empowered the people. Montesquieu provided common ground. As for a Bill of Rights, not even Anti-Federalists attached overriding importance to it.32 They were far more concerned with protecting local democracy and enhancing representative institutions in the central government. To some Americans, a declaration of rights also seemed an alien idea. After noting that “bills of rights are, in their origin, stipulations between kings and their subjects,” Hamilton even insisted that such devices “have no application to constitutions, professedly founded upon the powers of the people.”33 Although Hamilton’s argument did not prevail, it creates additional difficulties for the Americanization thesis. If Americans of the founding generation neither regarded a Bill of Rights as a uniquely American idea, nor attached priority to it, then no simple appeal to such a bill can show that Canada Americanized itself when it adopted its Charter of Rights.

E n g l is h L ib e rt y a n d C a nadi an Federali sm The Americanization thesis also takes too simple a view of Confederation. In 1867, Canadians rejected American republicanism and expressed their desire to have a constitution similar in principle to that of the United Kingdom. But, in rejecting the American model, they did not thereby indicate opposition to freedom or suppose that “peace, order, and good government” was antithetical to the freedom of the individual.34 Moreover, by 1867 Bagehot was challenging Montesquieu’s checks and balances theory, and for him the English Constitution rested “on the principle of choosing a single sovereign authority, and making it good.”35 The Fathers of Confederation embraced a Bagehot-like understanding of the English Constitution, applied it to Canada as far as their circumstances allowed, and regarded their creation as superior to the American model, which in their view had been a principal cause of the American Civil War. In the Confederation debates, Macdonald dismissed the American president as “but the successful leader of a party” and “in a great measure a despot.” In contrast, Canadians would have a sovereign representative who acts on the advice of ministers responsible to the people through Parliament. “We all feel,” Macdonald emphasized, the advantages of “our connection with England,” which secures “constitutional liberty according to the British system.”36 After

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Confederation, proposals for a Bill of Rights often met with responses that echoed Macdonald’s views. But what had Confederation accomplished and what implications did it have for English liberty and the Bill of Rights issue? In Brassard v. Langevin, decided shortly after Confederation, Justice Taschereau provided a partial answer. “We have borrowed from England,” he insisted, “institutions which, as regards civil and religious liberty, leave to Canadians nothing to envy in other countries.”37 Still, in times of war or other perceived crises, calls for an entrenched Bill of Rights were sometimes audible. One such crisis involved the Jehovah’s Witnesses and the Duplessis Government. In 1946, with 800 of their members facing trial, the Witnesses distributed an antiCatholic pamphlet, “Quebec’s Burning Hate,” that led to a charge of seditious libel against Aimé Boucher. Other Witnesses, including Laurier Saumur, were arrested for violating a municipal by-law that forbade the distribution of literature without a licence from the chief of police. Finally, Frank Roncarelli’s liquor licence was cancelled, on Duplessis’s order, because he had posted bail for hundreds of his fellow Witnesses.38 These cases eventually made their way to the Supreme Court. But before they did, W. Glen How’s “The Case for a Canadian Bill of Rights” appeared. Himself a Witness, How warned that, since the unwritten British Constitution meant “unlimited legislative power” and left “much to be desired as [a] practical safeguard for civil liberties,” Canadians should stop appealing to it. “In a land such as ours,” he insisted, “peopled by so many different racial and ethnic groups … the rights of the individual citizen must be written in the constitution.”39 However, the absence of a constitutional Bill of Rights did not prevent the Supreme Court from ruling in favour of the Witnesses. A divided court acquitted Boucher partly on the ground that seditious libel required an intention to incite violence or resistance, and not just a mere tendency to create discontent.40 Saumur was also decided in their favour: four judges ruled that power to restrict fundamental freedoms by regulating city streets was ultra vires of a province; two that it was intra vires; another two that control of the streets was a police power of a province; and one that the by-law violated the Freedom of Worship Act.41 In Roncarelli, a majority held that the premier had acted arbitrarily in ordering the revocation of the liquor licence, and awarded substantial damages against him.42 All three decisions are Canadian landmarks, and two of them illustrate the

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value of English constitutionalism. Under it, judges can protect liberty by applying restrictive rules of interpretation to statutes and regulations that impinge upon individual rights.43 In Boucher, such a strategy was used and the appellant went free. An even more fundamental aspect of English liberty is the rule of law: no one is above or outside the law, and officials must act within their lawful authority or face penalties for their failure. Roncarelli is important precisely because it vindicated the rule of law and affirmed, for Canadians, the enduring value of English liberty.44 The rule of law is part of the British connection that Macdonald emphasized. One of the classic discussions of both the rule of law and the British connection is A.V. Dicey’s Law of the Constitution, published two decades after Confederation. Dicey emphasized the common law origins of the rule of law, and also insisted that the sovereignty of Parliament in no way undermines it. “Two features,” he wrote, “have … since the Norman Conquest characterized the political institutions of England.” The first is the omnipotence of the central government, originally expressed as royal supremacy and subsequently as the sovereignty of Parliament. The second is the rule or supremacy of law, which Dicey contrasted with “those declarations or definitions of rights so dear to foreign constitutionalists.” Equally important is Dicey’s famous account of the conventions of the English Constitution and how constitutional conventions secure responsible government.45 Dicey’s book made explicit much that the Canadian founders took for granted. Where they differed, however, was with respect to the British connection. In fact, Dicey dismissed as a “diplomatic inaccuracy” the assertion – found in the preamble to the bn a Act – that Canada’s constitution was similar in principle to that of the United Kingdom. The Canadian constitution, Dicey insisted, was in many ways more like that of the United States.46 The important issue raised by Dicey as to the character of the Canadian constitution is not easily resolved. Still, the preamble to the b n a Act is revealing because it acknowledges the desire of the provinces to be “federally united.” The Canadian founders valued the English connection and admired British parliamentary sovereignty. But they also had to take account of the pluralism of Canada, which, among other things, necessitated concessions to the federal principle. Schooled in Austinian jurisprudence, Dicey regarded a federal division of powers as incompatible with English-style sovereignty and indicative of American notions of governance.47 The division of

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powers in the b n a Act also created other complications. Under the British Constitution, Parliament has the power to protect, regulate, and even abridge basic freedoms. But in Canada, neither level of government was expressly allocated power over basic freedoms by the b n a Act, and subsequent judicial decisions compounded the uncertainty. Consequently, the b n a Act and Canadian federalism often appeared to lead to a confusion of powers when it came to many of the freedoms cherished by English constitutionalism. With such a confusion of powers, Frank Scott demurred shortly after Saumur, “it is hard to protect [freedom] by law when you do not know whom it belongs to.”48 The problem Scott identified also has more general implications for theoretical attempts to reconcile parliamentary sovereignty and Canadian federalism under the b na Act. One view is that “so long as the term ‘parliamentary supremacy’ [ultimately] referred to the British Parliament, and so long as the Judicial Committee [in London] served as [Canadian federalism’s] umpire ab extra, the contradiction between the two principles created no problem.”49 But that view is countered by the impact of the Judicial Committee’s decisions on the structure of Canadian federalism and the long-standing Canadian debate on “The Judicial Committee and its Critics.” Far from dispelling the problem identified by Scott or reconciling parliamentary sovereignty and federalism, one constitutional scholar noted that “the interpretation of the British North America Act by the Judicial Committee of the Privy Council is one of the most contentious aspects of the constitutional evolution of Canada.”50 A federal division of powers made the Canadian constitution less like that of the United Kingdom. Did it also make Canada more like the United States? “In Canada, as in the United States,” wrote Dicey, “the courts inevitably become the interpreters of the constitution.”51 For Dicey, it was judicial review that conclusively established the kinship between Canadian and American institutions. Judicial review of the federal division of powers certainly brings Canada closer to the United States, but there are also considerations on the other side. Some of them have to do with the limitations on the scope and functions of judicial review under Confederation. In “Constitutionalism in Canada,” published a decade before adoption of the Charter, Bora Laskin noted the “major differences between the judicial review obtained under the Canadian constitution and its operation in the United States.” First, in Canada, unlike the United States, the courts

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could issue advisory opinions without the need for a “case or controversy.” Second, in Canada the range of inquiry into constitutional validity was normally limited by the ordinary rules of statutory construction. Third, judicial review in Canada was not directly concerned with preservation of the doctrine of the separation of powers. Fourth, since the Canadian constitution had no bill of rights, Canadian courts did not develop the near-legislative function with respect to rights that American courts had.52 Laskin’s fourth point is sometimes expressed by saying that in Canada before the Charter, Parliament and the provincial legislatures were “sovereign within their spheres,” and the crucial question asked by the courts about legislation was: “does it come under federal or provincial jurisdiction?”53 What Dicey overlooked was not just important differences with respect to judicial review in Canada and the United States. Even more consequential are the different values that ground the Canadian and American federal experiments. Confederation had military and commercial objectives, as did the American Union, and it too envisioned an extensive country.54 But the Confederation debates contain no discussion of Montesquieu’s problem of size and its implications for the problem of despotism. These were American problems. Moreover, if Montesquieu identified the problem that most troubled Americans in 1787, Lord Durham was the crucial figure for Canadians of the founding generation. Durham’s name was repeatedly invoked by those who opposed Confederation. To Dunkin, Confederation even appeared to compound the difficulties identified by Durham as “the war of races” by combining divergent racial and local identities within its framework.55 “Much had been said on the war of races,” retorted Taché, “but that war was extinguished … [when] the British Government granted Canada Responsible Government.”56 In fact, Confederation went beyond responsible government. It also went beyond the quasi-federal measures that French Canadians had helped to devise to promote their nationality and to radically transform the union of 1841.57 Confederation, unlike the American Union, included constitutional guarantees of minority language and education rights, as well as a federal division of powers that responded to racial, cultural, and local identities.58 “Canadian Confederation,” it has been said, “was a native creation. There was no intention of imitating the United States.”59 Canadians did, however, intend to imitate the United Kingdom. But the brand of federalism and the scheme of minority rights that distinguished Canada from the American Union also made its constitution unlike that of the United Kingdom.

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As a native creation, Confederation conferred on the federal parliament power to enact laws for the “peace, order, and good government” of the new dominion. That phrase is sometimes taken to express a Canadian commitment to a deeply conservative and anti-modern political philosophy or an authoritarian and even Hobbesian conception of political order, which is then contrasted with an open-ended American belief in libertarianism.60 But Canadians valued their inheritance of liberty in 1867, dreamed of creating a prosperous commercial union, and Macdonald extolled “constitutional liberty according to the British system.” Nor were the American framers so blinded by liberty’s bright light that they ignored Madison’s “reflection that liberty [is] equally exposed to danger whether the Government [has] too much power or too little power.”61 Where Canadians and Americans differed most was in terms of their respective models of “good government” and the divergent assumptions that underpinned them. In their determination to create “a more perfect union” that avoided tyranny but secured “the blessings of liberty,” Americans eventually settled for a compound republic modelled in many ways on the checks and balances of the eighteenth-century British constitution, and coupled it with a Bill of Rights that expressed civic republican ideals of governance. Canadians admired constitutional monarchy and parliamentary institutions as they existed under the nineteenth-century British constitution, but modified them to take account of a unique scheme of federalism and minority group rights that implicitly rejected Durham’s assimilation proposal, accepted cultural and even “racial” pluralism, and prepared the ground for the Bill of Rights debate in the next century. In both cases, British institutions had been transplanted and significantly modified by what Montesquieu called the spirit of the laws.62

T he F o u rt e e n t h A m e n dment, the Charter o f   R ig h t s , a n d t h e S pi ri t of the Laws Neither the US Constitution nor Canadian Confederation remained as the founding generation left them. After the Civil War, Americans adopted the Fourteenth Amendment, a second bill of rights that transformed the first. Sponsors of the Amendment were longstanding opponents of slavery. They also regarded federalism with suspicion because of its association with slavery and other violations of rights, and conferred power on Congress to enforce the Amendment against the states. 63 The original Bill of Rights “focused centrally on

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empowering the people collectively against government agents following their own agenda.” The Fourteenth Amendment, by contrast, “focused on protecting minorities against even responsive, representative majoritarian government.”64 When judicial enforcement is added, the result is the liberal-egalitarian conception of the US Bill of Rights that dominates many contemporary discussions of the Americanization thesis. “Our constitutional system,” writes Ronald Dworkin, “rests on a particular moral theory, namely, that men have moral rights against the state.” Dworkin does not confine the liberal-egalitarian conception of a bill of rights to developments in the United States. Instead, he abstracts and universalizes it by insisting that “constitutionalism [is] the theory that the majority must be restrained to protect individual rights.”65 Implicit in Dworkin’s model of constitutionalism is a subtler and more engaging version of the Americanization thesis than the one that regards the Charter as a significant step away from Confederation’s “peace, order, and good government.” On Dworkin’s model, Canada became more like the United States because, by adopting its Charter, it finally recognized human rights, finally conferred power on judges to protect them, and finally limited the unrestricted power of the majority. Like Rawls before him, Dworkin appeals to a Kantian notion of human dignity to ground human rights and thereby wraps his model of constitutionalism in an alluring ethics of humanistic universalism.66 But Dworkin’s model is misleading even as an account of American constitutionalism, and becomes more so if applied to Canada and the Charter. Instead of revealing incontestable truths about rights and their protection, Dworkin’s model universalizes and distorts the particular. It also obscures important differences between Canada and the United States made visible by the kind of embedded constitutionalism articulated by Montesquieu. Judged from the perspective of American constitutional history, Dworkin’s model not only takes for granted the shift produced by the Fourteenth Amendment, but also distorts the significance of the transformation. In Gitlow v. New York, decided in 1925, the Supreme Court first announced that the free speech and press protections of the First Amendment were among the rights guaranteed by the due process clause of the Fourteenth.67 Gradually thereafter, the Court expanded the list of guaranteed rights and pitted them against majoritarian democracy at both the local and national level. Then came the Warren Court’s landmark decisions on desegregation, voting rights,

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and criminal procedure, which vindicated for a significant number of Americans the liberal-egalitarian conception of the Bill of Rights.68 For many of them, Dworkin captured the essence of their political commitment when he defended the judicial activism of the Warren Court against Richard Nixon and his supporters. The courts, Dworkin insisted, should devise “principles of legality, equality, and the rest, revise [them] from time to time in the light of … fresh moral insight, and judge the acts of Congress, the states, and the President accordingly.”69 In Dworkin’s hands, the Constitution had become the Bill of Rights, the Bill of Rights had become individual rights against the majority, and individual rights against the majority had become judicial activism. Of the Warren Court’s decisions, Brown v. Board of Education is not only the most important, but also the one that appears to fit Dworkin’s model best and ultimately provides the best test of it. In Brown, the Court, relying on the Fourteenth Amendment, reversed the “separate but equal doctrine” and mandated racially integrated schools, despite much opposition to them.70 But when Brown is understood in its context, Dworkin’s model encounters considerable difficulties. Historically, Brown was necessary partly because racial segregation had been upheld by the Supreme Court, in 1896, in Plessy v. Ferguson, an inconvenient fact for Dworkin’s theory and related ideas of judges as unflinching guardians of individual and minority rights.71 Moreover, the Court’s Brown decision did not implement itself. The impact of Brown was slight until the federal government threatened to withhold funds from segregated schools. Equally significant was the president’s decision to dispatch US Army troops to Little Rock, Arkansas, to effect the admission of Black students to a local high school in 1957.72 Not even the most activist court in American history acted alone or in the way suggested by Dworkin.73 The Fourteenth Amendment transformed the Bill of Rights and diminished the power of the states. But the constitutional foundations of the American Republic remained much as before. In the Congressional debate on the Bill of Rights, Madison had argued that, if incorporated into the Constitution, its provisions should also extend to the states on the ground that the greatest threat to liberty would come from local majorities.74 Although his argument was rejected in 1791, it eventually prevailed. “Full vindication of the Madisonian vision” came with “the adoption of our Fourteenth Amendment after the Civil War.”75 In Madison’s constitutional vision, courts are not

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the sole or even the ultimate guardians of individual liberty. Instead, they are part of the institutional arrangement of the compound republic, which itself presupposes the extended republic of America.76 It took Lincoln and the Civil War to end slavery, and the Supreme Court’s Brown decision to signal the end of legally sanctioned racial discrimination. But it was Madison who envisioned the institutional arrangements capable of guaranteeing the Brown decision and facilitating the new birth of freedom that Lincoln prayed for in the Gettysburg Address. Dworkin’s model encounters still greater difficulties if the focus is shifted to Canada. With respect to the United States, Dworkin neglects the Madisonian foundations, but his idea of “rights as trumps” does capture dimensions of what atomistic and individualistic America has become.77 In Canada, however, “rights as trumps” strikes a more discordant note for reasons unrelated to “peace, order, and good government.” There is no incompatibility between rights and good government, in Canada or elsewhere. But there are different conceptions of rights, and the core conception that underpins Confederation and the Charter is not an individualistic or atomistic notion of rights as trumps. “Canada,” as Michael Ignatieff and others have noted, “has become one of the most distinctive rights cultures in the world.”78 One aspect of its distinctiveness is the recognition accorded to a multiplicity of group rights and group identities by the Canadian Charter. Moreover, the Charter has been described as a “wrenching transformation” not because of individual rights but because “it brings new groups into the Canadian constitutional order and gives them constitutional identities.”79 Empowered by the Charter, those groups adopt far-reaching litigation strategies, profoundly influence the federal and provincial legislative agenda, and actively participate in the process of constitutional amendment.80 The transformation effected by the Charter is as important as that brought about by the Fourteenth Amendment, but it is a transformation that fits within a different constitutional landscape. It is also a transformation begun in response to a problem that has no parallel in American constitutional experience. In the years before its adoption, the Charter’s most influential advocate was Pierre Trudeau. Initially, he regarded the Charter primarily as an instrument that would empower judges to protect inalienable rights against legislative infringement.81 Such a conception of the Charter is similar to Dworkin’s theory. But Trudeau eventually formulated a second and more complex rationale for the Charter, one

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that addressed a recurring problem of Canadian federalism. In the Confederation debates, Dunkin predicted the early demise of Canada partly on the ground that it lacked a principle of cohesion. “Have we any class of people,” he asked, “whose feelings are going to be directed to … Ottawa, the centre of the new nationality that is to be created?”82 In Trudeau’s second formulation, like Dunkin’s query, the greatest threat to Canadian unity came from the deep diversity of the federation, compounded after 1867 by continuing decentralization to provincial governments and an organized independence movement in Quebec. But if a declaration guaranteeing the inalienable rights of all Canadians were adopted, Trudeau reasoned, the fragmentation of Canada would be halted and its unity established.83 Trudeau’s second rationale for the Charter builds at least partly on a premise that he took from Montesquieu, and expressed as “create counterweights.”84 But, where in Montesquieu’s account power checked power, Trudeau’s counterweight consisted of inalienable human rights. In this regard, and forgetting Montesquieu’s discussion of the spirit of the laws, Trudeau also sought to compare the Charter to the 1789 French Declaration and the 1791 American Bill of Rights. Like them, the Charter, he insisted, established the primacy of the individual, constitutionalized inalienable rights, and strengthened the country’s unity based on a set of common values.85 But the struggle for the Charter and the modifications that were made to it before its adoption tell a different story; they also reveal a side of Canadian pluralism that Trudeau underestimated. Aboriginals, women, ethnic minorities, and the disadvantaged, among others, did not regard the Enlightenment’s individualistic conception of “the inalienable rights of man” as expressive of their identities or concerns.86 For example, section 25 of the Charter states that it shall not be construed so as to abrogate or derogate from any Aboriginal treaty or other rights of the Aboriginal peoples of Canada. The Aboriginal peoples of Canada asserted their historic, collective, and communitarian rights as founding peoples, and in doing so demonstrated that Trudeau’s conception of the Charter was not an adequate representation of their vision of Canada. Nor were provincial and other fears about the Charter’s centralizing and atomizing impact any easier to ignore. As a result, more concessions were made to group rights than Trudeau deemed desirable. And a notwithstanding clause that he abhorred was also added.87 The Charter as adopted still expressed aspects of the Canadian identity, but it was an identity with a tilt toward group

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rights, which in this and other ways made the Charter unlike the French Declaration or the American Bill of Rights. The pluralism of Canada not only reshaped Trudeau’s Charter, but also turned it into a peculiar counterweight, significantly different from what Trudeau had envisioned. “On the whole, the Charter,” a constitutional scholar has written, “portrays Canadians as a single national community with other than provincial distinctions.”88 To that extent, the Charter embodies Trudeau’s dream of one Canada.89 But Trudeau’s dream of Canada was complex and it changed several times over the years. He also envisioned a Canada committed to diversity, celebrated the Canadian mosaic, and wanted French and English to cooperate in a form of pluralistic federalism that belonged to tomorrow’s world. “Our image,” he wrote more than a decade before the adoption of the Charter, “is of a land of people with many differences … but a single desire to live in harmony.”90 But with two failed mega constitutional accords and an almost successful sovereignty referendum in Quebec since its adoption, what the Charter has not produced is a more harmonious and united Canada.91 Instead, in the struggle against federal fragmentation, the Charter is an enigmatic and unpredictable counterweight. As a constitutional instrument with political purposes, the Charter bears little resemblance to the political purposes of the (1791) US Bill of Rights or the Fourteenth Amendment. The Charter is also a legal document that judges interpret and their interpretations cast additional doubts on the Americanization thesis. Keegstra (hate speech) and Butler (sexist pornography) are among the most important Charter decisions, yet neither decision is like anything decided by American judges. The counterpart of Butler is American Booksellers v. Hudnut, a decision defended by Dworkin. “Speech that expresses racial hatred, or a degrading attitude to women,” writes Dworkin, “has come to seem intolerable.” But, like Judge Easterbrook in American Booksellers, Dworkin argues against prohibiting “the speech that we hate” because “freedom of speech, conceived as negative freedom, is the choice modern democracies have made.”92 That is not the choice Canadian democracy has made, either in Parliament, or the provincial legislatures, or through the Supreme Court. In Keegstra, Chief Justice Dickson insisted that the Charter’s multiculturalism and equality provisions necessitated a departure from the view – “prevalent in America” – that the suppression of hate propaganda is incompatible with the guarantee of free expression.93 In Butler, Justice Sopinka

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upheld the suppression of violent and dehumanizing pornography on grounds that American judges have rejected.94 If the Charter has Americanized Canadian law, many Canadian judges do not seem aware of it.

Con t in u in g C a n a d ia n C ons ti tuti onali sm In the Quebec Secession Reference, the Supreme Court reflected on the breakup of Canada. The Court also analyzed the Canadian constitution. It identified four principles traceable to Confederation as forming its “internal architecture” – namely, federalism, democracy, constitutionalism and the rule of law, and respect for minorities. So, summarized, the Court’s analysis seems unexceptional. But it acquires considerable significance if the Court’s full analysis of the Canadian constitution’s “internal architecture” is compared to Dicey’s sketch of English constitutionalism or Madison’s account of American constitutionalism. Not Dicey’s sovereignty of parliament with the rule of law, nor Madison’s checks and balances in an extended republic, but the recognition of divergent ways of life and the protection of ethnic, territorial, national, and other minorities under a common constitution are the characteristics that the Court most closely identified with Canada.95 “The significance of the adoption of a federal form of government [in 1867] cannot be exaggerated.” Without it, neither the agreement of Quebec nor the Maritimes “could have been obtained.” As for the Charter, the Court regarded its adoption as momentous, and numerous studies – from Manfredi’s Judicial Power and the Charter (2001) and Morton and Knopff on The Charter Revolution and the Court Party (2000) to Kelly’s Governing with the Charter (2005) and Barker’s Not Quite Supreme (2010) – have discussed dimensions of the Charter’s importance, especially with respect to (real or apparent) judicial supremacy. But in the Quebec Secession Reference, the Court emphasized and re-emphasized something else about the Charter – namely that the protection of minority rights and group rights did not originate with the Charter but was part of a constitutional design begun at Confederation. Even the protection of Aboriginal rights, “so recently and arduously achieved,” was “consistent with this long tradition of respect for minorities, which is at least as old as Canada.”96 Embedded in the Quebec Secession Reference is an account of the Canadian constitutional tradition that does not equate it with either English constitutionalism or the

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American model but regards it as continuous and sui generis with its deepest roots in the pluralism of Canada and will of Canadians to live amicably together, provided their differences are also recognized, respected, and accommodated.97 But the Supreme Court does not always speak in an unambiguous voice. In the Quebec Secession Reference, the Court also remarked that “with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy.”98 It is only a short step from this partial slide into constitutional monism to the contemporary complaint, noted by the Court itself in Vriend and other cases, that “hardly a day goes by” without some comment about judicial “usurpation” of the legislative role under the Charter.99 The Court has rejected the charge of usurpation partly by insisting that the Charter authorizes its judicial interventions and partly by intimating that it engages in a democratic dialogue with the political branches of government.100 The Court’s idea of Charter dialogue has many supporters; it also has many critics. But even if the Court’s reply to the critics of the dialogue theory is accepted, it still shifts the focus away from the Court’s message in the Quebec Secession Reference about Canada’s many-sided constitutional pluralism, which cannot be subsumed under either Dicey’s British-style parliamentary supremacy or American-style judicial supremacy and Dworkin’s “rights as trumps” theory. Put in another way, is the Canadian constitution from Confederation to the Charter primarily about “the British connection” versus “the Americanization thesis”? Or is it about the complex identity and unity of a pluralistic Canada, in which questions about rights, legislative power, and judicial decision-making must be worked out and cannot be simply borrowed? Perhaps the last (but not the final) word belongs to one of the framers of the US Constitution. “I hold with Montesquieu,” Alexander Hamilton wrote in a letter to Lafayette, “that a government must be fitted to a nation … and, consequently, that what may be good at Philadelphia may be bad at Paris, and ridiculous at Petersburgh.”101

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3 The Notwithstanding Clause and the American Rights Model Federalism and Legislative Power in Canada and the United States

T h e D e bat e over t h e N o t w it h s ta ndi ng Clause The Charter’s notwithstanding clause is an innovative and controversial part of the Canadian constitution that brings to light distinctive features of Canadian identity and critical dimensions of the Canadian constitutional faith. Moreover, its importance is by no means diminished by its relative lack of use, partly because its very existence challenges widely held beliefs about constitutional government.1 As successive prime ministers with different party affiliations, Pierre Trudeau and Brian Mulroney were often in disagreement; but they agreed about the notwithstanding clause and the need to condemn it. Trudeau described it as “in flagrant contradiction with the very essence and existence of the Charter.”2 Mulroney asserted that use of the notwithstanding made the Canadian constitution “not worth the paper it is printed on.”3 A number of constitutional scholars share their views. “The primary reason for wishing to do away with the override,” John Whyte has suggested, “is that … political authority will, at some point, be exercised oppressively.” His fear is that a democratic majority will use the notwithstanding clause “to impose very serious burdens on groups of people when there is no rational justification for doing so.”4 But the notwithstanding clause also has its supporters. They describe it as an ingenious Canadian compromise and defend it as an essential pillar of democratic citizenship. Even before it was agreed to on

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political grounds, Paul Weiler advocated a non obstante provision on its merits. He admitted that judges were sometimes effective in restraining majority tyranny. “But,” he went on to say, “the definition … and limits of our rights is always an ambiguous and debatable matter.” Accordingly, judges should not have the last word in a democracy. “Once the judges have issued their verdict,” he wrote, “I would leave Parliament … with the final say.”5 For Weiler, the notwithstanding clause is an innovative institutional arrangement that combines the best features of British parliamentary supremacy and American judicial supremacy. Peter Russell has arrived at a similar conclusion. What he emphasizes is that the notwithstanding clause can contribute to a stronger democracy than one which puts its faith exclusively in the judiciary. By countering the flight from democratic politics characteristic of the American system, he suggests, the override provides “a signal that we Canadians have not yet given up on our capacity for debating and deciding great issues of political justice in a popular forum.”6 Not surprisingly, supporters of the override worry about its infrequent use and call for its immediate reform and revitalization. The debate over the notwithstanding clause is a fascinating theoretical debate with important practical implications. But it is not without gaps, omissions, and even intellectual biases. It is almost always conducted as a debate about democracy and just as often with one eye on the US Bill of Rights and American judicial power. But Canada, while similar to its southern neighbour in some respects, differs significantly from it in being a distinctive kind of federation and in encountering different challenges of pluralism and multinationality from those that have shaped the American identity. Moreover, Canadian constitutionalism is not confined to such issues as individual rights versus majority rule or to the respective merits of courts and legislatures as rights-protecting institutions. Just as fundamental – if not more so – is Canadian federalism, the diversity of Canada, and the place of Quebec and of Indigenous nations in Confederation. In the debate over the notwithstanding clause, democracy and judicial power are discussed, debated, and dissected; Canadian federalism, however, often enters almost as an afterthought. But the notwithstanding clause without federalism is like the Charter without Confederation. In both cases, important dimensions of Canadian pluralism are neglected, Canada is turned against itself, and distinctive features of the Canadian constitution are either obscured or assimilated to the American model.

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Giving Canadian federalism greater recognition will not end the debate over the notwithstanding clause or answer all the questions about Canada’s multifaceted constitutional faith, but it will bring into focus issues more characteristically Canadian. By expanding and refocusing the debate over the notwithstanding, it also becomes possible to reconsider the debate over the Canadian Supreme Court and to diminish the hold of American conceptions of judicial power.

W h y a N o t w it h s tandi ng Claus e? Politically and theoretically, there is no more revealing starting point than Trudeau’s statement that “a Constitution is a vision for society.”7 One of the key challenges posed by the notwithstanding clause is that, as the product of complex negotiations between Trudeau and several provincial premiers, it represents a mixture of diverse and potentially conflicting constitutional visions and requires future generations to grapple with them. Its main and explicit textual requirements, however, are quickly summarized. Section 33 of the Constitution Act, 1982 provides that Parliament or a provincial legislature can expressly declare that its legislation shall operate notwithstanding section 2 (fundamental freedoms) or sections 7 to 15 (legal and equality rights) of the Charter. Other Charter rights (such as democratic rights, mobility rights, and minority-language education rights) are beyond its reach. Legislation under it operates for five years, but can be reenacted. Although the text seems simple enough, it hides difficult theoretical issues. Moreover, the Supreme Court’s landmark Ford decision has done little to illuminate those particular issues. Setting aside a Quebec Court of Appeal decision, the Supreme Court insisted that, despite the lower court’s ruling to the contrary, legislation enacted under the notwithstanding clause did not have to refer to the specific rights overridden since the text contained no such requirement.8 The lower court had also held that the notwithstanding clause could be validly exercised only after an informed public debate. But the Court could find no more textual warrant for such a requirement than it could for the contention that the notwithstanding clause reflected the continuing importance of unrestricted sovereignty.9 Confronted with difficult questions about legislative sovereignty and democratic dialogue, the Court opted for constitutional literalism and evaded them. Far less reticent have been the political actors who initially sponsored the notwithstanding clause, and who refused to accept the

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Charter without it. After leaving office, Peter Lougheed had occasion to explain why, as the premier of Alberta, he had joined the premiers of Saskatchewan and Manitoba in demanding a notwithstanding clause. With the benefit of hindsight, he reflected on its use by the governments of Quebec and Saskatchewan, reviewed the leading scholarly debates, and sided with those who regarded the notwithstanding clause as a valuable tool of democratic self-government in a society devoted to rights. He recalled that the notwithstanding clause was a “most controversial” issue when first introduced, and continued to be an “emotional issue” of constitutional significance. “Essentially,” he explained, “Mr. Trudeau got his Charter of Rights and the Western Premiers got both the Alberta Amending Formula and a notwithstanding clause.” The overtly political origins of the notwithstanding clause did not prevent him, however, from regarding it as “a good idea,” or from recommending that it should be retained rather than repealed, and improved rather than allowed to lie dormant.10 The notwithstanding clause did not turn Canada into the best of all possible worlds – but it did remedy, he insisted, a shortcoming of American constitutionalism. For Lougheed, the crucial issue was and continued to be the need to secure the supremacy of the people’s elected representatives over their unelected judges. Quoting from a debate in the Alberta legislature, he reiterated the core premise of the western premiers, namely, that they were opposed to “policy … being dictated by non-elected people.” When asked if the notwithstanding clause would be used only to correct miscarriages of justice, he replied that it would be used “when major matters of public policy were being determined by the court as a result of an interpretation of the Charter.” All the western premiers agreed that “legislators and not the courts should determine these matters.” Moreover, Lougheed suggested that the existence of the notwithstanding clause would enable the courts to apply Charter rights more vigorously and strictly, in the knowledge that “society and its government will have the ultimate say in the matter.” He and the other premiers did not oppose individual and minority rights; but they did oppose judicial supremacy. “The drafters of the Canadian Charter,” he said, were familiar with “the problems created by judicial supremacy in the US.” To prevent their recurrence in Canada, the Western premiers insisted on the notwithstanding clause because “it allows … legislators to curb an errant court.”11 Implicit in Lougheed’s discussion is the belief that the Charter is not solely or even primarily about rights. No assumption could be

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more opposed to the constitutional vision of Pierre Trudeau. His experience with the Duplessis regime convinced him that parliamentary government was in some cases an imperfect safeguard of human rights.12 Moreover, Trudeau also believed that an entrenched charter would promote national unity by creating a common Canadianness based on inalienable rights that transcended provincial, regional, linguistic, and other identifications.13 He often described the Charter as “the people’s package,” compared it to the US Bill of Rights, and insisted that it too “recognized that all sovereignty resides in the people.”14 The response of the Western premiers was that Trudeau’s quest had led him away from the sovereignty of the people and towards government by judiciary. Lougheed reiterated this point and strengthened it by quoting Peter Russell’s observation that a constitutional charter “guarantees not rights but a particular way of making decisions about rights in which the judicial branch … has a much more systematic and authoritative role.”15 Closely related is Christopher Manfredi’s discussion of “the paradox of liberal constitutionalism.” Manfredi concedes that judicial review is part of liberal constitutionalism; but judicial review, he adds, can also destroy the most important right that citizens possess, namely, their right of selfgovernment. As evidence of this, Manfredi quotes no less an authority than Abraham Lincoln, who warned the American people that if vital questions of policy were to be fixed irrevocably by the decisions of judges, then the people would cease to be their own rulers.16 For Manfredi, as for the western premiers, the solution to these difficulties is the notwithstanding clause. In demanding the notwithstanding clause, the western premiers were not defending crude majoritarianism, still less the tyranny of the majority. Nor were they blind to the role of the judiciary in protecting rights from unintentional or ill-considered legislative infringement. So much seems clear both from Lougheed’s original remarks and from his subsequent proposals for amendments to the notwithstanding clause. Lougheed proposed three reforms, all of them designed to contribute to “the responsible … discussion of rights issues.” First, he believed that the notwithstanding clause should be modified “to disallow, as Quebec had done, standard form overrides.” Instead, override legislation should specify its precise purpose so that rights would be infringed no more than necessary. Second, he agreed with the federal government’s proposal that neither Parliament nor a provincial legislature should be able to invoke the override unless it could muster a special majority. Finally, he regarded as undemocratic

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the preemptive legislation of the Saskatchewan government in 1986 and would prohibit use of the override until after a final judicial determination. Such reforms, he insisted, would enhance the contribution of the notwithstanding clause to democratic dialogue and responsible self-government. Moreover, all of the reforms were premised on the understanding that “the purpose of section 33 was ultimate supremacy of Parliament over the judiciary not … exclusion of the judiciary’s role.”17 Prima facie, Lougheed’s proposed amendments to the notwithstanding clause seem unobjectionable even from the opposing standpoint of Trudeau’s constitutional vision. After all, Trudeau acknowledged that “many respectable jurists” endorsed the override; he also believed that, with some restrictions, the authority of the lawmaker should prevail over that of judges. “What I cannot accept,” he wrote, “is that such authority be made to prevail in a purely arbitrary way, in the manner of a dictate, as Section 33 allows.”18 Thus he approved of the Charter’s reasonable limits clause but disapproved of the notwithstanding clause. But what if the notwithstanding clause were amended, as Lougheed and others have proposed, so as to make its exercise less arbitrary and more responsive to democratic dialogue? Would such an amendment settle the dispute that divided Trudeau and the western premiers and bring the debate to an end? It would not, if Trudeau’s goal of creating a national identity based on uniform, pan-Canadian rights is regarded as essential either for his constitutional vision or for the future of Canada. Any derogation of Charter rights by the provinces, even reasonable and democratic derogations, would introduce provincial diversity and thereby conflict with Trudeau’s idea of a common Canadian identity. The override can be amended and its exercise can be rationalized, but not even an amended and rationalized override can satisfy, at one and the same time, all the constitutional objectives of both the western premiers and Pierre Trudeau.

R ig h t s a n d J u d g e s in a Democracy: Can a da   a n d t h e A m e r ican Ri ghts Model Lougheed described the debate over the notwithstanding clause as “the great Canadian debate.” But, as his own analysis reveals, it is just as much a debate about the United States. What both sides take for granted is Tocqueville’s account of the American Supreme Court and his belief that “a more imposing judicial power was never

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constituted by any people.” Tocqueville also insisted that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”19 Trudeau distrusted all power, but distrusted judicial power least.20 Moreover, he admired the American constitutional system for the way it checked and balanced power, and he praised the American Supreme Court for defending individual rights.21 The western premiers were skeptical of American judicial power and preferred instead the British constitutional tradition and government by the people’s representatives in a parliamentary assembly. Their way of thinking is captured by Francis Bacon’s discussion of judicature and his comparison of judges to the lions under King Solomon’s throne.22 What concerned them was that Canadian judges might become too much like American judges and might prefer to enthrone themselves rather than support parliamentary institutions and the people’s throne. As a discussion of American judicial power, the great debate over the notwithstanding clause reveals much about the American system; but, when the focus is shifted to Canadian pluralism, it reveals even more about important and often ignored dissimilarities between Canada and the United States. Canadians have debated the American system on other occasions, and never more intensely than in the years immediately before Confederation. Then, a primary focus was the American Civil War and at least three Canadian views emerged. Henri Joly believed that civil war was the unhappy and recurring fate of all federations, and predicted the same outcome for Canada.23 George Cartier contended that the American Civil War had its roots in the riotousness of Americanstyle democracy, whereas Canada, he insisted, would be spared a similar fate because it perpetuated the monarchical element and adhered to a distinctive scheme of federation.24 The third view was expressed by Macdonald. He identified the American Civil War with states’ rights and the failure of the US Constitution to allocate sufficient power to the central government. In contrast, Confederation would create, Macdonald insisted, a new and highly centralized Dominion of the North, one not prone to civil disunion and demonstrably superior to the American Republic.25 Missing from all three accounts, however, was the slavery issue and its disruptive impact. When Abraham Lincoln reflected on the causes of disunion, he insisted that only the issue of slavery was capable of fundamentally dividing the American people against themselves.26 Inextricably linked with slavery, as Lincoln well knew, was the whole issue of American freedom.

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Even as they witnessed the American Civil War, the Canadian founders overlooked or ignored the slavery issue. Nor did they seem to grasp fully the way that America was even more an experiment in freedom than it was an experiment in federalism or democracy or states’ rights. Americans invented federalism in its best-known modern form, but they approved of federalism only to the extent that it promoted freedom and not otherwise. Americans did not invent democracy, but it too bore the same relationship to freedom so far as they were concerned. “For the founding generation,” wrote Martin Diamond, “it was liberty that was the comprehensive good … and democracy … had to prove itself adequately instrumental to the securing of liberty.”27 Moreover, the Declaration of Independence challenged the American people to establish a government so attuned to liberty that it dispelled tyranny and secured inalienable rights. In The Federalist, James Madison provided part of the solution. He envisioned a compound republic in which the power surrendered by the people was first divided between distinct governments, and then the portion allotted to each subdivided among separate departments. Democracy was to be combined with federalism and the separation of powers in an extended or compound republic so as to provide “a double security … to the rights of the people.”28 But Madison’s constitutional vision fell short in at least two respects. Anti-Federalists complained that the proposed constitution conferred too many powers on the central government; they demanded – and received – a bill of rights to curb the powers newly granted. Much less easy to remedy, however, was the problem of Black slavery, which Madison and the other framers hid within the intricacies of federalism, and which required the Civil War to expunge it from the Union. “In giving freedom to the slave,” said Lincoln after the Civil War began, “we assure freedom to the free.”29 Assuring freedom went far beyond the military clashes of the Civil War and ultimately came to depend on the Fourteenth Amendment. Ratified three years after the Civil War, the Fourteenth Amendment also challenged the key assumption of the Anti-Federalists and re-opened in a fundamental way the issue of American freedom. Anti-Federalists had regarded the Bill of Rights solely as a security against the power of the central government and did not intend it to apply to state governments. But with the Fourteenth Amendment, Americans came to regard state governments as posing a far greater threat to freedom than the central government ever had. After its adoption, all persons born and naturalized in the

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United States, including former slaves, were citizens of the United States. State governments were commanded not to abridge “the privileges and immunities” of citizens; not to deprive any person of life, liberty, or property “without due process of law”; and not to deny “the equal protection of the laws.” Freedom was national, insisted the sponsors of the Fourteenth Amendment; slavery was local.30 That the Fourteenth Amendment connected freedom with centralization seems plain enough. Why else did it authorize Congress to enforce its provisions by appropriate legislation? What is less clear is the extent of the constitutional transformation envisioned or the role assigned to the Supreme Court. Inevitably, the debate turns to the Warren Court. Civil libertarians applaud its decisions of the 1950s and 1960s that used the Fourteenth Amendment to end school segregation in Brown v. Board, compelled state legislators to adopt the principle of “one man, one vote” in Reynolds v. Sims, and overhauled state criminal procedure in Miranda v. Arizona. In an influential study, Archibald Cox surmised that the main impetus for the Court’s decisions was the demand for racial justice buttressed by a belief in egalitarianism. According to Cox, the Court acted because Congress failed to act. In some areas, Cox conceded, the Warren Court had moved too far and too fast. But Cox did not think that there were many Americans who wished to revive the caste system, or wished to restore rural domination of State legislatures, or wished to revive criminal trials without the aid of counsel.31 The Warren Court has also had its critics. Some of them have contended that its decisions lacked neutrality, some, that the Court disregarded the original intention of the Fourteenth Amendment, some, that it intruded into areas of social policy beyond its competence.32 More basic still is the complaint that judges of the Warren Court behaved like Platonic Guardians and flouted the right of the American people to govern themselves. “For myself,” wrote Judge Learned Hand, “it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them.”33 James Bradley Thayer, Hand’s teacher at Harvard, expressed similar views in works that are cited by almost all critics of the Warren Court and the judicial activism it has come to symbolize. Thayer cautioned that judicial review, even when unavoidable, tended “to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.”34 Judges should never forget, he insisted, that their role is, and was intended to be, secondary to that of the people and their elected representatives.35 Part of the response

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to both Hand and Thayer has been to emphasize the special role of courts in a constitutional democracy. By safeguarding free speech and other preferred freedoms, and by protecting discrete and insular minorities, courts can both prevent a slide into majority tyranny and sustain the democratic process.36 Moreover, rulings by the American Supreme Court do not inevitably paralyze public debate; rather, they often invigorate it by focusing attention on important principles and by contributing to what Eugene Rostow provocatively called “the democratic character of judicial review.”37 But even if these replies are accepted, a difficulty remains. If judicial review implies judicial supremacy, it is, to that extent, inconsistent with the basic premise of the American constitution. “We the people … do ordain and establish this Constitution.” Supremacy belongs to the people, not to the judges. In the United States, one of the most basic and recurring problems is how to secure both constitutional liberty and the benefits of judicial review without undermining the people’s supremacy.38 For some, the mere possibility of constitutional amendment seems to be enough to solve the problem; its availability ensures, they contend, that there is “nothing undemocratic in having responsible and independent judges as important constitutional mediators.”39 Alexander Hamilton used a different argument in The Federalist. He argued that the power of impeachment was “a complete security” against judges who overstepped their boundaries or preferred their values to those of the Constitution.40 President Roosevelt proposed yet a third solution during the New Deal crisis of the 1930s; he put his faith in the power to appoint judges and, in particular, the threat of court-packing.41 No one denies that constitutional amendment, impeachment, and the appointment process can act as important checks on the judiciary, but their efficacy is not unlimited and they certainly do not exhaust the options imaginable. “The perfect solution,” writes John Agresto, “would have been for the judiciary to possess the same legislative relationship to Congress as that which governs the executive.” A Congressional override, based on a special majority, he goes on to say, would have combined “judicial scrutiny with final democratic oversight” and resulted in “the perfect balancing of … constitutionalism with active popular sovereignty.”42 Michael Perry has also supported the idea of a Congressional override and has explicitly endorsed the notwithstanding clause in the Canadian Charter of Rights and Freedoms.43 There is, nevertheless, an important difference between the Charter’s notwithstanding clause and the idea of a Congressional override. In

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a lecture to an American law school, delivered shortly after the Charter was adopted, Paul Weiler highlighted part of the difference. After describing the notwithstanding clause as an innovative Canadian response to the “universal dilemma of rights and judges in a democracy,” Weiler went on to suggest that “almost all American scholars would have grave qualms about conferring any such power on the state legislatures.” The reason seemed plain enough and reflected, he insisted, “what might have happened after Brown v. Board of Education had Mississippi had a legislative override on fourteenth amendment issues.” In Canada, he went on to say, no comparable “disquiet” existed with respect to provincial governments, which underlined “the great difference between Canadian and American conceptions of federalism.”44 But if the differences are as momentous as Weiler suggested, then the question of the two different conceptions of federalism and their divergent implications for constitutionalism requires more attention than it usually receives in discussions of the notwithstanding clause, and certainly more attention than it received from the western premiers who sidestepped the issue altogether and focused almost entirely on democracy. The western premiers perceived what they regarded as a fatal flaw in the democratic credentials of the American rights model and were determined to prevent its recurrence in Canada. But no more than the Fathers of Confederation did they probe the deeprooted problems of American freedom or their momentous effects on the evolution of American constitutionalism. As a result, in their discussion of the Charter’s notwithstanding clause, they endorsed too simple an understanding of the American rights model, blurred important differences between Canadian and American federalism, and shifted attention away from crucial dimensions of the constitutional innovation that they had been instrumental in creating.

Can a d ia n F e d e r a l is m , Ameri can Freedom, an d  t h e C h a rt e r ’ s N o t wi ths tandi ng Clause The Charter’s notwithstanding clause is no more likely to be an improved version of the US Bill of Rights than Canadian Confederation is an improved variant of the American founding. To suppose otherwise is not just to accept too uncritically the opinions of political actors. It is also to neglect foundational differences between the Canadian and American constitutional experiments. Moreover, if the

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notwithstanding clause is to be understood in the way the western premiers wanted it to be understood, then a puzzling fact comes to the fore. The override has been so little used by those who demanded its inclusion in the Charter that it seems to matter hardly at all as a means of asserting active democratic control over the judiciary. The suggestion has even been made that a constitutional convention may be developing against its use.45 Of course, its relative lack of use does not necessarily settle questions about its possible use and some commentators warn that it might be used at a future date to disadvantage an unpopular minority.46 Others believe that its non-use is a sign that American-style judicial supremacy is eroding Canadian democracy, and hope to rehabilitate the notwithstanding clause.47 The debate over the notwithstanding might continue almost entirely as a debate about democracy if it were not for inescapable dimensions of Canadian federalism and, in particular, the way federal diversity asserted itself with the Meech Lake Accord and the use of section 33 by the government of Quebec (even before the Accord failed) to shelter its “French only” signs law from Charter review. Quebec’s place within Canada and the character of Canadian federalism are important issues for Canadian constitutionalism; they are equally important for the notwithstanding clause as part of a constitution intended to be “a vision for [Canadian] society.”48 In this regard, the constitutional odyssey of the notwithstanding clause in the writings of one of Canada’s leading constitutional scholars provides an informative case study. Initially, in an essay entitled “A Theory of Judicial Review under the Charter,” published in his 1987 book Politics and the Constitution, Patrick Monahan praised the inclusion of the notwithstanding clause in the Charter and insisted that, much like the Charter’s affirmative action provision, it demonstrated that there is no necessary incompatibility between individual freedom and governmental power. The notwithstanding clause also provides for the legislative, rather than judicial, specification of freedom and rights. Monahan endorsed this feature of s.33 as well, and suggested that it showed “a basic trust” in the political process. “The purpose” of the notwithstanding clause, he wrote, “is not to legitimate tyranny … [but] to ensure that the political process will not be subject to unreasonable or perverse judicial interpretation.”49 After the failure of the Meech Lake Accord, however, Monahan took a different view. He attributed the Accord’s failure to Quebec’s use of the notwithstanding clause in protecting its controversial signs law, an action that

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raised questions about the nature of Canada and Quebec’s place within Confederation. Monahan now insisted that the inclusion of the notwithstanding clause in the Charter had been a serious mistake and he called it “a ticking time bomb waiting to explode.” Its existence, he insisted, “made it a certainty that, sooner or later, Canadians would be divided along French-English lines in a way they had never been divided before.”50 A large part of the problem, Monahan insisted in his book Meech Lake: The Inside Story, was that the drafters of the Charter regarded the override as a “safety value” for legislatures faced with rogue judges, but gave “little or no” thought to its effect within Quebec. The supreme irony, he continued, was that those who initially demanded inclusion of the notwithstanding clause – such as the western premiers – would find it completely useless, given the growing symbolic value of the Charter in English Canada. The override would become “the forbidden fruit” for all governments except the government of Quebec, which alone had refused to endorse the 1982 Constitution.51 Not all of Monahan’s conclusions are incontestable. Thus Quebec’s use of the notwithstanding clause has been defended on the ground that the government of Quebec should have the last word on minority language rights within the province. Such issues, Peter Russell has suggested, raise fundamental questions about political justice and cannot be left to the Supreme Court for ultimate decision. “It is extremely doubtful,” he adds, “that the unity of Canada could survive [if] Quebec’s legislature … [were] denied a continuing role in deciding what is necessary to preserve Quebec’s French character.”52 The territorial unity of Canada is not jeopardized in the same way or to the same extent by Canadian Aboriginals but they too have insisted that the override should be made available to their communities. In the failed Charlottetown Accord, their demand was recognized and they were granted access to the notwithstanding clause “under conditions … appropriate to the circumstances of Aboriginal peoples.”53 Moreover, the extension of the notwithstanding clause to them was expressive of the vision of Canada implicit in the Charlottetown Accord. If the Charter of Rights represented, at least in its earliest draft versions, Trudeau’s constitutional vision and his dream of one Canada, the Charlottetown Accord was in many respects its antithesis.54 The Accord postulated a three nations conception of Canada – Quebec, Aboriginals, English Canada – and entrenched the multicultural and other particularisms that compete for recognition

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within the Canadian state. Trudeau called the Charlottetown Accord “a mess that deserves a big no.” He contended that it subordinated individual rights to collective rights, created an invidious hierarchy of rights, and set Canada on a path to eventual civil war. The Accord also doomed, he said, future efforts to repeal the notwithstanding clause since Aboriginals would now join those who favoured its retention. With the Charlottetown Accord in place, Trudeau warned, “everyone will have their own little state” and the fragmentation of Canada will be complete.55 Trudeau was not content to oppose the Charlottetown Accord or to reiterate his dream of one Canada. He also called attention to the American system, praised the American Supreme Court, and urged Canadians to read Madison’s Number 10 of The Federalist.56 What he left unsaid, however, was that the principal theorist of the American constitution had regarded state governments with suspicion. “Madison,” wrote Martin Diamond, “believed that republican liberty would perish under the states.”57 The genius of Madison was that he turned the small republic theory upside down and argued that only a strong national government could guarantee freedom. “The great teaching of The Federalist,” Diamond explained, “is not how to be federal in a better way, but how to be better by being less federal.”58 Americans can be less federal because federalism is not the core of American freedom or the American constitutional faith. But Canadians must regard federalism differently because Canada is at its core a federal nation and there is no Canadian equivalent of America’s “we the people.” In the Quebec Secession Reference, the Supreme Court of Canada arrived at a similar conclusion. The Court described federalism as integral to the internal architecture of the Canadian constitution and its lodestar. The significance of the adoption of the federal form of government, the Court said, “cannot be exaggerated” because it was “a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today.”59 Such recognition of federal diversity and its contribution to Canadian constitutionalism is far removed not only from Madison’s distrust of state governments but also from Trudeau’s dream of one Canada as expressed in his opposition to the Meech Lake and Charlottetown Accords. Nor have federal diversity and cultural pluralism failed to leave their mark on the Supreme Court’s Charter decisions.60 During the debate over the adoption of the Charter, some commentators, relying on the 14th Amendment of the US Constitution, warned that an entrenched Bill of Rights would tend to centralize authority in any

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federation. Others focused on Charter values and insisted that the decisions of the Supreme Court would erode the ability of provincial governments “to build distinctive provincial communities.”61 In both scenarios, Trudeau’s view of the Charter as a nationalizing instrument was implicitly accepted and provincial concerns about a policy-making judiciary were highlighted.62 But several decisions of the Supreme Court tell a more complex story. In R v. S(S), Chief Justice Dickson insisted that Charter values could not be given unlimited scope and that unequal treatment based on province of residence was not a sufficient ground for nullifying a law. “To find otherwise,” Dickson wrote, “would be to completely undermine the value of diversity which is at the foundation of the division of power.”63 Similarly, in Haig, Madame Justice L’Heureux-Dubé described the “differences between provinces [as] a rational part of the … federal process” and denied that the Charter’s guarantee of equality required uniform application of all federal legislation to all provinces.64 In these and similar cases, the Court has neither opposed the democratic will nor accepted visions of Canada in which the underlying premise is the “Charter versus Federalism” or “federalism fights the Charter.”65 In Ford v. Quebec, the Supreme Court also demonstrated its concern to protect both Charter values and federal diversity. Such an assessment might seem odd, at first, given Quebec’s use of the notwithstanding clause in response to the Court’s ruling and given the subsequent failure of the Meech Lake Accord. But these facts are only part of the story and they reveal nothing at all about the content of the Court’s decision. In Ford, the Court noted the crucial role of language rights in sustaining human dignity and community membership, acknowledged that the very survival of the French language was in question, and granted that the protection of the French language was a legitimate legislative objective that could justify restrictions on free expression under the Charter’s reasonable limits clause. What the Government of Quebec had failed to demonstrate in Ford, however, was that “use of French only [was] either necessary for the achievement of the legislative objective or proportionate to it.” French could be required in addition to any other language; it could be required to have greater visibility than any other language. “But exclusivity for the French language,” the Court insisted, “has not survived the scrutiny of the proportionality test and does not reflect the reality of Quebec society.”66 Eventually, after the failure of the Meech Lake Accord, the Government of Quebec enacted a new signs law. This time, however, the law allowed for the use of languages other than French on outdoor

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signs provided French was predominant. And it did not contain a notwithstanding clause.67 What are the lessons of Ford? That the override is a time tomb? That it curbs an over-reaching judiciary? That it facilitates legislative arbitrariness? There is also a fourth possibility. Based on Ford and other cases, Hogg and Bushell have proposed the idea of a Charter dialogue between courts and legislatures. For them, the value of Charter dialogue is that it enhances the legal dimensions of Canadian constitutionalism while countering the anti-majoritarian objection to judicial review. “Where a judicial decision,” they write, “can be reversed, modified, or avoided by a new law, any concern about the legitimacy of judicial review is greatly diminished.”68 Part of the critical response to them has been to question the frequency with which genuine dialogue between courts and legislatures occurs.69 Mark Tushnet has gone further, and has also warned that the language issue may yet disrupt Canada just as slavery disrupted the United States.70 Although such a possibility is real enough, there are important differences between the language question and the slavery question, and equally important differences between Canadian and American constitutionalism. The American Civil War, together with the centralizing transformation effected by the Fourteenth Amendment, resulted in part from the inability of American federalism to find a peaceful solution to the slavery issue, as slavery’s westward expansion into new territories brought into conflict two irreconcilable ways of life.71 Federalism and localism were diminished so that freedom and free labour would prevail over institutionalized slavery in a reconstituted constitutional regime.72 But the deepest contest over the Charter has always been of a different order: it is about how best to protect the diverse rights of Canadians while simultaneously promoting a common identity. In the Canadian context, including the contest over language rights, compromise and mutual respect are no more precluded than is Charter dialogue or use of the notwithstanding clause by either level of government.73 Compromise is possible with respect to language rights in ways that it is not possible with respect to slavery.

Can a d ia n R ig h t s T a l k a nd the Plurali ty o f   C o n s t it u t io n a l Cultures Whatever else can be said of it, the notwithstanding clause mirrors the complexity of Canada and defies simple characterization or assessment.74 It has belied the expectations of both the western premiers

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and Pierre Trudeau. Nor has it proven to be the time bomb predicted after the failure of the Meech Lake Accord. More recently the notwithstanding clause has been called a constitutional paper tiger, but such a characterization seems premature given the uses that have been made of it and the uncertainty about its future.75 Many of its critics and supporters debate it in terms of American-style judicial supremacy versus British-style parliamentary sovereignty. But as different issues become prominent, such as Quebec’s place in Confederation and Aboriginal interest in the override, the original debate seems incomplete, especially with respect to issues of Canadian federalism. The override fits neatly within the scheme of Charter dialogue identified by Hogg and Bushell, yet even they seem undecided about it. “In practice,” they write, “section 33 has become relatively unimportant, because of the development of a political climate of resistance to its use.”76 Finally, there are the proposals to reform the override along the lines suggested by Peter Lougheed. One difficulty they encounter, however, is that no less a critic of judicial power than Robert Bork – the one-time nominee to the American Supreme Court – regards them as untenable. “It would probably be a mistake,” he writes, “to try to purchase respectability and renewed vitality for the [notwithstanding] clause by making it even more difficult to use.”77 Bork does not just add one more consideration to the already complex debate about the notwithstanding clause. He couples his warning with a sobering account of the worldwide growth of judicial power and the worldwide decline of democratic legislatures. “Judicial review as practiced in the United States,” he writes, “provides a case study of what other countries may expect, and many are already experiencing, as they take up the same form of constitutionalism.” They can expect, he insists, “the rule of judges,” such that judicial imperialism displaces democratic self-governance and the ideology of the cultural left outflanks traditional values through the coercion of the judicial forum. With the rule of judges also comes a “clamorous public square,” an insistent “harping” on rights, and the disappearance of republican virtue. Turning from the United States to the rest of the world, Bork insists: “we are witnessing the growth of an international constitutional common law” and the emergence of “the worldwide rule of judges.” As for Canada, it displays “the same overall tendencies” as the United States. Not only can the virtual atrophy of the notwithstanding clause be attributed in large measure to the near-worship of courts, but Bork also warns Americans against copying the Canadian innovation, suggesting that its mere existence “would be used, as it

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has been in Canada, to justify judicial adventurism.” The two most important and unanswered questions for all nations, Bork concludes, are how to retrieve constitutional law from the exclusive control of judges and “how to tame and limit the anti-democratic aggressions of their judiciaries.”78 However, Bork’s appraisal of contemporary developments is not without its limitations. Whatever its value as an account of American constitutionalism, it is virtually blind to the vitality of different constitutional cultures and even sidesteps its own evidence about constitutional pluralism. Thus Bork quotes Justice Kennedy’s remark that European federalism “has nothing to do with [American] federalism,” yet neither federalism nor pluralism figures very much in his estimate of contemporary constitutionalism.79 Similarly, he cites Mary Ann Glendon’s influential book Rights Talk but does not notice that she contrasts Canada with the United States; Glendon also emphasizes the concern in the Canadian constitution with “the rights of others.” Unlike American rights talk, with its emphasis on “no compromise” and “winner takes all,” Canadian rights talk includes, Glendon contends, the precept “that the most important thing … is learning how to get along well with one’s neighbours.” Glendon also contrasts other aspects of Canadian and American constitutionalism, such as the Charter’s reasonable limits clause and its recognition of group rights. Finally, she draws attention to Chief Justice Dickson’s view that while the Charter has introduced “a new ball game,” the Canadian Supreme Court “would not be playing by American rules,” and it did not intend to displace federal and provincial legislators as the chief policy-­ makers.80 By refusing to universalize American experience, Glendon is able to recognize that no country has a monopoly on the meaning of rights or the practice of federalism or the logic of judicial review. Moreover, if Canadian judges have not attempted to imitate Americanstyle judicial supremacy, then such issues as “the anti-democratic character of judicial review” become less urgent, and discussion of the notwithstanding clause can focus more attention on the differences between Canadian and American federalism and the place of Quebec and Aboriginal communities within Canadian constitutionalism.

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4 British Judges, Charter Dialogue, and America’s “Celebrated Footnote” Judicial Review and Fundamental Values R ig h t s , J u dges , an d t h e C o u n t e r- M ajo ri tari an Di ffi culty With a rights revolution come not only judges but also “the countermajoritarian difficulty.” That, at least, is one of the most commonly recited American views. “The root difficulty,” wrote Alexander Bickel, “is that judicial review is a counter-majoritarian force in our system.” Bickel knew that American judges attempted to engage this difficulty; some even insisted, as Alexander Hamilton had in The Federalist, that by enforcing the Constitution, they too represented the people’s will. But, replied Bickel, the word “people” so used is an abstraction, obscuring the reality that the Supreme Court “thwarts the will of the actual people here and now; it exercises control, not in behalf of the prevailing majority but against it.” Take away the “mystic overtones,” and what remains is that “judicial review is undemocratic.”1 A similar complaint is familiar in Britain with the 1998 Human Rights Act and is frequently heard in Canada. “Hardly a day goes by,” Justice Iacobucci observed in Vriend, “without some comment … that under the Charter courts are wrongfully usurping the role of the legislatures.”2 That judicial review is undemocratic or that it usurps legislative authority is not, however, universally accepted. If anyone ranks with Bickel, it is John Hart Ely; yet Ely not only defends the Warren Court, the most activist court in American history, but also believes that its key decisions promote democracy. Behind the Warren Court’s decisions is “Footnote Four” of Carolene Products – which, Ely contends, appeals to the same assumptions as Madison’s theory of representative government in an extended republic.3 Thus, the best way to

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refute the critics, Ely insists, is by imitating the Warren Court and building on “the most celebrated footnote in constitutional law.”4 In Canada, the reply has come as a theory of “Charter dialogue” between courts and legislatures, first formulated by Peter Hogg and Allison Bushell, and subsequently endorsed in Vriend and many other judicial decisions. “Our conclusion,” Hogg and Bushell write, “is that the critique of the Charter based on democratic legitimacy cannot be sustained.”5 Similarly, in Vriend, the Court held that Charter dialogue had “the effect of enhancing the democratic process, not denying it.”6 In Britain, the debate is more open-ended, despite the fact that it signed the European Convention on Human Rights in 1950 and has had, over many centuries, great common law judges familiar with judicial lawmaking. What can be said about process-perfecting judicial review (“Footnote Four”) and Charter dialogue theory is that they are important ideas, particularly as responses to “the counter-majoritarian difficulty.” But neither is more than a partial theory of judicial review and both ultimately fail to capture the deepest commitments of the constitutional systems they purport to describe. “Any recognizable theory of judicial review,” Ronald Dworkin has suggested, “aims to provide an interpretation of the Constitution as an original, foundational legal document, and also aims to integrate the Constitution into our … practice as a whole.”7 When assessed by this exacting standard, a key problem with process-perfecting judicial review is that it does not engage the substantive values of the American constitutional faith that underpin American democracy and without which “Footnote Four” is an empty formula. As for Charter dialogue theory, it says too little about the foundational values of Canadian Confederation, and the way those values have shaped not only Canadian federalism but also the Canadian rights revolution. The deeper problem, however, is with “the counter-majoritarian difficulty” itself and the status accorded to it. Far from identifying an inescapable conundrum or a necessary starting point, it obscures the innovative theory of democracy that forms a vital part of American constitutionalism – and it is positively misleading as a conceptualization to the spirit of Canadian constitutionalism. From a still-wider perspective that includes contemporary British constitutionalism, the counter-majoritarian difficulty seems even to ask the wrong question for a country in search of a new constitutional faith and in the midst of a many-sided pluralist transformation.

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De bat in g t h e O r ig in s o f Judi ci al Revi ew in   t h e U n it e d S tat es and Canada By severing the link, postulated by Alexander Hamilton, between judicial review and “we the people,” Bickel brilliantly challenged supporters of judicial activism and compelled them to respond to the accusation of “government by judiciary” in the modern world’s first experiment in democracy. That is one reason why Bickel’s work has attracted so much attention. But it also has limitations. Among the limitations is that it provides too simple an account of the complex origins of judicial review and takes too restricted a view of the functions of judicial review. This section focuses on the United States and Canada in terms of the origins of judicial review. Judicial review has different origins in Canada and the United States. Moreover, even with respect to the United States there is more disagreement about “origins” than Bickel acknowledged, particularly when the focus is on the American framers and their understanding of judicial review in 1787. However, most American discussions routinely take as their starting point Marbury v. Madison (1803), which contains the famous pronouncement on judicial review by Chief Justice Marshall. His basic argument was simple and is easily stated. The power of the Supreme Court to strike down acts of Congress, he asserted, was based on (1) the written character of the US Constitution and (2) the inherent right of the American people to limit the powers of government by higher law.8 Moreover, in constructing this argument about the origin of judicial review as an implied delegation from the people to the courts to control the other branches of government, Marshall did not appeal either to constitutional history or common law precedents. Instead, he set out to perform, as Charles Black noted, “a neat geometrical demonstration of the logical necessity of judicial review.” But, as Black also observed, “he failed.” He failed because neither a constitution’s written character nor its status as higher law establishes the necessity of judicial review. A written constitution might consist merely of counsels and exhortations, and the idea of higher law “implies little as to the location of the final responsibility for construing it.” However, Marshall’s failure did not lead Black to conclude that the Supreme Court had usurped its power. Rather, Marshall had underemphasized, Black insisted, the really pivotal point for Americans – that “our Constitution” is to be “taken as law” and that, on the probabilities

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of the evidence, the power to interpret the American Constitution is located in the courts.9 But what is the evidence for the power claimed by the Chief Justice? No attempt to answer this question can ignore Charles Beard’s classic and controversial analysis in The Supreme Court and the Constitution. Written in 1912, when the courts were striking down Theodore Roosevelt’s social legislation, and their decisions were met with accusations of judicial usurpation, Beard’s book attempted to demonstrate that the power of judicial review was clearly intended by the American framers. No fewer than fourteen members of the Federal Convention, and possibly as many as twenty-five, he insisted, “believed that the judicial power included the right and the duty of passing upon the constitutionality of acts of Congress.” To buttress this conclusion drawn from an analysis of the records of the Federal Convention, Beard added his famous and unorthodox account of the anti-­democratic spirit of the Constitution. The Constitution, he suggested, far from being a democratic manifesto, stood in sharp contrast to the populism and egalitarianism of the Declaration of Independence, and represented a marked conservative and propertied reaction against it. The system of checks and balances and the independence of the judiciary were among the devices, he insisted, that “bear witness to the fact that the underlying purpose of the Constitution was not the establishment of popular government.”10 In Beard’s account, judicial review was both intended by the framers and designed to perform an anti-democratic function. Bickel was among those who regarded Beard’s arguments as highly persuasive and explicitly referred to Beard’s book in his own discussion of the counter-majoritarian difficulty.11 Nevertheless, when Edward Corwin reviewed Beard’s evidence, he concluded that the American framers were far more divided on judicial review than Beard’s tally had suggested. Eight, he estimated, recognized the power of judicial review, four opposed it, and most said nothing at all.12 Corwin also took a more complex view of the spirit of the Constitution. “No one denies,” he wrote, “the concern felt by the Fathers for the rights of property.” But why, he asked, “did they choose the precise system … to do the work which they put upon it?”13 Corwin sketched his answer in three classic essays, one on “The ‘Higher Law’ Background of American Constitutional Law,” another on “The Progress of Constitutional Theory between the Declaration of Independence and the Meeting of the Philadelphia Convention,” and a third on “Marbury v. Madison and the Doctrine of Judicial

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Review.”14 In each, he emphasized the multiple influences that shaped American constitutionalism as well as the innovative character of the theory that eventually emerged. Americans, he suggested, discovered the sovereignty of the people and used it to transcend both legislative sovereignty and state particularisms; they took over the idea of higher law and supplied it with a judicial sanction; and largely through James Madison, they recognized that the provision of adequate powers for the national government would also safeguard private rights.15 Madison, as Beard and Corwin recognized, is the pivotal figure for American constitutionalism. Frequently called the Father of the Constitution, he developed an original political theory, one that not only countered the misgivings of Anti-Federalists, but also reconceptualized democracy.16 In his essay on the “Vices of the Political System of the United States,” written before the meeting of Federal Convention, he called attention to the “injustice of the laws of the states” in relation to property and other rights; Madison concluded that such injustice brought into question the fundamental principle of classical democratic theory, namely, that the majority in a small republic “are the safest Guardians both of public Good and private rights.”17 Rather than abandon democracy or state governments, however, he reconceptualized both as part of what he called, in the Federalist, “the compound republic of America.” By extending the territory of the American Republic, by dividing and redividing the powers of government, and by adopting an enlightened scheme of representation, Madison hoped to cure the mischief of faction and provide “a republican remedy for the diseases most incident to republican government.”18 When it came to judicial review, however, Madison embraced a variety of ambiguous positions, both at the Federal Convention and during the rest of his life.19 What seems certain, nevertheless, is that unlike Beard Madison did not regard the spirit of the American constitution as undemocratic – and he left it to future generations to define the exact role of judicial review in the compound republic.20 The Canadian debate on the origin of judicial review differs from the American debate in at least one important respect: the character and implications of democracy did not play a significant part in it. Judicial review in Canada, it has been observed, might be “as much a corollary of imperialism as of federalism.”21 Behind this statement is not an anti-democratic leaning but the Colonial Laws Validity Act and the Judicial Committee of the Privy Council, as well as the Canadian constitutional theorizing that has found classic expression

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in the writings of W.R. Lederman and B.L. Strayer. Lederman’s primary focus was the venerated principle of the independence of judiciary, which has roots in Magna Carta. He regarded it as “a first principle of the [English] constitution capable of withstanding even the legislative primacy of the United Kingdom Parliament,” and he drew the conclusion that it provided the real foundation for judicial review in Canada.22 In response, Strayer insisted that the central royal courts were subject to limitation by the sovereign uk Parliament and “never had the power to review acts of Parliament for validity, in spite of the pretensions of Coke and others.” Consequently, it was “impossible to imply an inviolable right of judicial review in Canadian superior courts on the basis that this is an inherent characteristic of ‘superior court.’” Finding “no simple explanation” for judicial review in Canada, Strayer concluded that Canada’s one-time colonial status, its commitment to federalism, and the independence of the judiciary had all played a part in its establishment.23 The Canadian founders also played a part, but their views are fragmentary and contradictory. At the Quebec Conference, “Macdonald,” it has been suggested, “alluded to the need for some form of judicial review in his initial argument on the desirability of federal union.”24 But Macdonald also implied at one point that judicial review would be unnecessary, since the powers of reservation and disallowance would check the provinces and buttress the strong central government created by the new Constitution.25 Moreover, as judicial review came to be exercised by the Judicial Committee of the Privy Council after Confederation, it acquired a significance that neither Macdonald nor anyone else anticipated. Reviewing the work of the jc pc Viscount Haldane, who presided over some of its most important deliberations, insisted that Canadians owed an enormous “debt” to the Judicial Committee for putting cloth on “the bones of the Constitution” and for recognizing the Provinces “as of equal authority co-ordinate with the Dominion.”26 However, Canadians have never agreed on what the decisions of the j c p c accomplished for Canada, or even on how to assess the jurisprudential soundness of the decisions. In some accounts, the “provincial bias” of its decisions is both acknowledged and justified as “in fundamental harmony” with the regional and cultural pluralism of Canada.27 “If the law lords had not leaned [toward provincial autonomy],” Pierre Trudeau once insisted, “Quebec separatism might not be a threat today; it might be an accomplished fact.”28 But the j c p c has also been criticized for

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eroding the powers of the central government and thereby promoting political fragmentation and endangering the unity of Canada.29 Judicial review with respect to the distribution of powers has also been controversial in the United States. In the landmark case of McCulloch v. Maryland, decided in 1819, Chief Justice Marshall angered supporters of states’ rights by sustaining an act of Congress to establish a bank, and sparked one of the most significant debates of American constitutionalism. What the critics of Marshall’s opinion contended was not only that his decision unduly expanded national power and trenched on powers reserved to the states, but that it conflicted with the fundamental values of the American Revolution and the great liberties for which Americans had fought and died.30 Marshall replied, extra-judicially, that the Constitution envisioned and created a national government capable of contributing to the liberty and welfare of the American people as a whole. He then asked, rhetorically, “Will [anyone] deny that there is such a people as the people of the United States?”31 In this reply lies a critical difference between judicial review in Canada and the United States. In Marbury v. Madison and McCulloch v. Maryland, Chief Justice Marshall’s ultimate – if sometimes inadequately expressed – appeal was to the American people and the kind of constitutional government that embodied their values. Supporters of states’ rights differed from the chief justice on the powers of the national government and the role of the Supreme Court, but not even they were prepared to dispute his assertion that an American people existed or that their values mattered.32 However, the existence of a Canadian people is not something that can be taken for granted. In the United States, judicial review is overwhelmingly a debate about the democracy and its implications because American constitutionalism is about “we the people.” In Canada, if judicial review is to reflect the fundamental values of Canadian constitutionalism and the pluralistic values of Confederation, it cannot appeal to a non-existent “we the people” or focus exclusively on democracy or “the countermajoritarian difficulty.”

Am e r ic a n D e m o c r acy a nd Footnote Four The importance of “we the people” for the US Constitution and for American constitutional theory is difficult to exaggerate.33 “The people,” said Tocqueville, “reign in the American political world as

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the Deity does in the universe. They are the cause and the aim of all things; everything comes from them, and everything is absorbed in them.”34 No one familiar with the difficulties occasioned by the concept of the people in Canada’s pluralistic constitutional theory would make a similar statement about Canada. But Tocqueville was also aware of the other side of American democracy and condemned, as forcefully as Madison had, the tyranny of the majority and the alleged right of the American people to do whatever it pleases. Part of what makes “Footnote Four” of the Carolene Products case so fascinating is that it embraces the two parts of America’s democratic creed – the concern for the sovereignty of the people and respect for individual rights – and attempts to show that they are reconcilable within the original framework of the American constitution, properly understood. Moreover, Footnote Four is the basis of a sophisticated theory of judicial review that attempts to dispel not only misgivings about the framers’ democratic intentions, but all concerns about the Supreme Court’s democratic credentials. In Ely’s appraisal, Bickel’s counter-majoritarian difficulty represents little more than a failure to understand the real function of judicial review in the American constitutional system.35 However, Bickel did not stand alone, but belonged, as Ely knew, to one of the most distinguished schools in American constitutional thought and contributed significantly to its development. The theory of judicial restraint – which counts among its early exponents such eminent jurists as Thayer, Holmes, Hand, and Frankfurter – advocates judicial deference to the representative branches of government, judicial modesty based on the court’s limited powers, and judicial skepticism in regards to transcendent claims of rights. Bickel accepted each of these positions, and added a forth more peculiarly his own, a theory of judicial prudence. It too had constitutional roots, which he traced jurisprudentially to Louis Brandeis and politically to Abraham Lincoln. As a Supreme Court justice, Brandeis had insisted: “the mediating techniques of ‘not doing’ were ‘the most important thing we do.’” Building on this insight, Bickel contended that the Supreme Court performs “a triune function: it checks, it legitimates, or it does neither.” Moreover, the Court had developed “an almost inexhaustible arsenal of techniques and devices” precisely for the purpose of “not doing.” The doctrines of standing, ripeness, and void for vagueness were, Bickel believed, among the most valuable juridical techniques and devices precisely because they engaged the Court “in a Socratic

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colloquy with the other institutions of government and with society as a whole concerning the necessity of this or that measure, for this or that compromise.”36 For Bickel, Lincoln was not just the political counterpart of Brandeis’s constitutional jurisprudence; he was, even more significantly, the figure who best understood the deepest challenges faced by American constitutionalism. “Our democratic system of government,” Bickel wrote, “exists in this Lincolnian tension between principle and expediency, and within it judicial review must play its role.” In his “House Divided” speech, delivered shortly before the American Civil War, Lincoln opposed slavery on moral grounds, but was prepared to tolerate it provided it was not allowed to expand, and provided a path remained open for its ultimate extinction. The judicial lesson that Bickel drew from Lincoln’s position on slavery was that although courts were the guardians of principle, they frequently confronted problems that required the application of both principles and expediency at one and the same time. Moreover, it was in this vein that Bickel praised the Supreme Court’s momentous Brown v. Board of Education decision, for although it declared segregation unconstitutional as a matter of principle, the requirement of “with all deliberate speed” enabled the political institutions to tell the judges “what expedients of accommodation and compromise they deemed necessary.” Bickel even speculated that Brown might have been rendered nugatory, if Southern leaders had avoided violent resistance against it and had, instead, pursued their objective to overturn it by lawful means only. For neither Brown nor any other judicial decision, Bickel reasoned, could prevail “if it ran counter to deeply felt popular needs and convictions”; and “this, in the end, is how and why judicial review is consistent with the theory and practice of political democracy.”37 Brown is also a case to which Ely attached great significance. Unlike Bickel, who emphasized judicial prudence and the legacy of Lincoln, Ely’s test for judicial review focused on Footnote Four and Madison’s original vision of the constitution. “The Warren’s Court approach,” Ely wrote, “was foreshadowed in a famous footnote in United States v. Carolene Products Co., decided in 1938.”38 Politically, the “famous footnote” represented something of a revolution in its own time: for it signalled not only the Court’s final acceptance of the New Deal, but also its shift away from the protection of property rights, and its tentative endorsement of a new judicial role.39 The principal author of the footnote was Justice Stone. He held that legislation regulating

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economic matters would be sustained by the Court provided it rests on “some rational basis,” but that a “more exacting judicial scrutiny” might be required when “prejudice against discrete and insular minorities” operates to curtail “those political process ordinarily to be relied upon to protect minorities.”40 The primary thrust of Footnote Four, then, concerns political processes and the special role of the Court in remedying their critical failures in a democratic system of governance. The footnote does not stop there, though. It also includes the precept – proposed in camera by Chief Justice Hughes – that the Court must be just as vigilant in guarding the specific rights enumerated in the constitutional text.41 What is missing from Footnote Four, however – and what Ely himself attempted to supply – is the comprehensive constitutional theory that underpins it and exhibits the coherence of its parts. Without such a theory, Hughes’s concerns about the text of the Constitution and Stone’s concerns about political processes might simply pull in different directions or even fly apart. Such a result did not and could not occur, Ely contended, because the original constitution was itself “overwhelmingly dedicated to concerns of process and structure and not to the identification and preservation of specific substantive values.” Nor did the addition of the Bill of Rights in 1791 or the adoption of the Civil War Amendments, Ely went on to say, alter the fact that what has distinguished the American Constitution, “and indeed the United States itself, has been a process of government, not a governing ideology.” Moreover, Ely insisted that it was precisely this view of the American constitution that Madison defended. Ely cited Madison repeatedly and quoted, in particular, his belief that “it is of great importance in a republic not only to guard society against the oppression of its rulers, but to guard one part of society against the injustice of the other part.” Eventually, Americans discovered that the checks and balances of Madisonian pluralism were themselves insufficient, because a majority composed of a cluster of minorities could oppress a minority even in the compound republic. Yet Madison’s views, Ely insisted, remained vitally important; for it was Madison who provided the most penetrating analysis of representation and demonstrated its importance for the operation of a constitutional democracy. “Once again,” Ely wrote, “Madison said it early and well.”42 However, Madison was not omniscient. What even he had not seen clearly – though Justice Stone had – was that a sufficiently pervasive prejudice could not only provide the majority in an extended,

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compound republic with a motive to invade the rights of other citizens, but could also block its own correction. When such results occurred, Ely wrote, representative government had malfunctioned and merely worked to insure that the “ins will stay in and the outs will stay out.” Moreover, for Ely, race prejudice and its consequences provided the classic illustration of the malfunctioning of the representative process, just as the Brown decision illustrated one of the crucial steps required to correct it. But the Brown decision, Ely contended, provided only part of the solution and failed to reach the political process itself. The Court, Ely insisted, must go further because it also had a duty to police the process of representation, to clear the channels of political change, and to facilitate the representation of minorities. Rather than attempt to enforce substantive values, a task that it was poorly qualified to perform in any case, the Court should adopt “a participationoriented, representation-reinforcing approach.” Such an approach to judicial review, Ely argued, accomplished three crucial objectives: it respected the design of the Constitution, it was consistent with the expertise on matters of process that judges actually possessed, and it reconciled what were sometimes regarded as two conflicting American ideals – the protection of popular government and the protection of minorities from denials of equal concern and respect.43 In place of Bickel’s counter-majoritarian difficulty and his Lincolnian theory of judicial prudence, Ely put Madisonian pluralism, Footnote Four, and a representation-reinforcing theory of judicial review. But Ely’s theory is not without its limitations, and ultimately is no more satisfactory than Bickel’s. Ely insisted that his theory of judicial review was consistent with democracy, but he took democracy for granted and too readily equated it with proceduralism. If any right can be called a democratic right, it is the right to vote. Not even the right to vote, however, fits his theory. For who should have the vote – women, racial minorities, those without property? – is not a procedural but, as Laurence Tribe has insisted, “a profoundly substantive question.”44 Similarly, the concern with protecting disadvantaged minorities, which Ely shared with Justice Stone and the Warren Court, is not simply a procedural matter. “The problem,” wrote an eminent Supreme Court justice, “is this: … to infer that the [legislative] process has been corrupted by invidious discrimination a judge must have some substantive vision of results the process should have yielded.”45 In a comprehensive critique, Bruce Ackerman’s went further. He insisted that since groups that are relatively anonymous and diffuse (like the poor) are even

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more easily discriminated against than groups that are discrete and insulated (like religious minorities), Footnote Four and Ely’s theory were “utterly wrongheaded” even as “an exercise in symptomatology.” Both were also wrongheaded, he added, because they failed to recognize that “We the People of the United States do have a set of fundamental commitments that bind us together in ways that our interest-group representatives are not normally elected to modify.”46 Ironically, Ely himself provided one of the most compelling reasons for questioning his own theory of proceduralism. “Our Constitution,” he wrote, almost in passing, “has always been substantively concerned with preserving liberty. If it weren’t, it would hardly be worth fighting for.”47 The liberty for which Americans fought was neither pure democratic proceduralism nor the majoritarian impulse. No one saw this more clearly than Lincoln, whom Bickel repeatedly quoted. In a famous eulogy, Lincoln said of Henry Clay that he loved America partly because it was his own country, but mostly because it was a free country dedicated to the advancement of human liberty, human right, and human nature.48 What Lincoln expressed – more eloquently than Madison and in the language of Jefferson – was the core premise of the American constitutional faith. But the American faith in liberty is complex and it calls on the Supreme Court to consider both the rights of people and their sovereignty.49 Bickel’s theory of judicial review fits majoritarian democracy and highlights the fragility of judicial authority, yet it is no more satisfactory than Ely’s theory in capturing the American constitutional faith or the Supreme Court’s relationship to it. In deciding great constitutional cases, it has been said, the American Supreme Court must often know the American people better than they know themselves and must even remind them, as it did in Brown, of their “better selves.”50 But the Court could not perform that function if it identified “we the people” with majoritarian democracy, or if its deepest commitment was either to proceduralism (Ely) or to judicial prudence (Bickel). Nor could American democracy ever hope to become what Lincoln once called “the last, best hope of earth.”51

C h a rt e r D ia l o g u e a nd Canadi an C o n s t it u t io n ali sm “We the people” does not appear in any Canadian constitutional document. At Confederation, no one supposed that Canadians formed

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one people. Instead, there were frequent reminders of what Lord Durham had called “the war of races” and also that the Maritime Provinces wished to retain their distinctive identities. In 1867, as stated in the preamble to the b na Act, the hope was that Canadians could be “federally united” under the British Crown with “a Constitution similar in principle to that of the United Kingdom.” More than a century later, the Charter of Rights provided Canadians with new self-images and transformed the constitutional landscape. Its ultimate appeal was not to “we the people” but to “the supremacy of God and the rule of law.”52 Even the failed Charlottetown Accord, which described Canada as “a democracy” committed to protecting an array of human rights as well as Aboriginal and Quebecois distinctiveness, contained no such reference.53 In the United States, “we the people” reminds Americans that they are one people; it also expresses the essence of their constitutional faith, in which individual liberty expels tyranny and is ideally reconciled with democracy. That Canadian documents contain no similar appeal is indicative of the depth of Canadian pluralism, and that Canada’s constitutional faith rests on different values. Moreover, if an important function of the US Supreme Court is to remind Americans of their “better selves,” a no less noticeable task of the Canadian Supreme Court is to unravel the novelties and complexities of Canada’s ethic of constitutionalism, which sustains its enigmatic constitutional faith. Among the novelties of Canadian constitutionalism, none is more important or controversial than the Charter of Rights. As its principal proponent, Pierre Trudeau wanted the Charter to provide a new beginning for Canada and firm foundations for national unity. He once said that the Charter he envisioned would establish “the primacy of the individual over the state” and would recognize that “all sovereignty resides in the people.”54 Canada, he also said, would no longer be characterized by competing provincialisms and separatist challenges but would become, with the Charter, a country “knit together from coast to coast by persons confident in their individual rights wherever they may live.”55 He seems to have regarded Confederation as a lost constitutional world, and put virtually all his hopes for Canada’s future on the Charter. But the Charter that was eventually adopted did not repeal the b n a Act and it did not reflect just his vision of Canada’s future. Aboriginals, women’s groups, l g bt q people, and new Canadians also had views about what the Charter should contain. The western premiers demanded a notwithstanding clause, so

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as to protect provincial legislative sovereignty and prevent the kind of judicial activism that they associated with the United States.56 Moreover, the Charter also contains a reasonable limits clause, which permits the legislative curtailment of rights by both levels of government and, to quote Chief Justice Dickson, “operates to accentuate a uniquely Canadian vision of a free and democratic society.”57 A charter that allows rights to be limited and overridden in some cases, that acknowledges Aboriginal distinctiveness and accommodates federal diversities is certainly a Canadian vision, but it also departs from Trudeau’s vision and falls short of the new beginning that he hoped for.58 It also differs significantly from the US Bill of Rights. What dominates contemporary discussion of the Charter, however, is neither Trudeau’s vision of it, nor the pluralistic re-­orientation it underwent before its adoption. The principal focus of many Charter inquiries is, rather, the question of democracy and the counter-­ majoritarian difficulty. In a review article, Richard Sigurdson examined the writings of left-wing and right-wing critics of the Charter, and noted that both groups relied “upon curiously similar arguments about the impact of the Charter and the perils of judicial review.” He did not deny that there were important differences between them, but he also emphasized that the recurring theme was that “they accuse [the Charter] of generating anti-democratic political consequences.”59 Many Canadians, in other words, increasingly analyze the Charter of Rights with the same questions in mind as Americans analyze the US Bill of Rights. Nowhere is this more evident than in the ongoing debate over the idea of Charter dialogue, which made its first appearance in an article published in 1997 by Peter Hogg and Allison Bushell. Their thesis is that what exists in Canada is “The Charter Dialogue between the Courts and Legislatures.” Moreover, it is that thesis about “dialogue” that enables them to suggest, as the subtitle of their article intimates, that “Perhaps the Charter of Rights Isn’t Such A Bad Thing After All.” Their ultimate objective, then, is to respond to Charter critics, on both the left and the right, who regard the Charter as “a ‘bad thing’ … based on an objection to the legitimacy of judicial review in a democratic society.” What those critics regarded as unacceptable, to quote Hogg and Bushell, is that “under the Charter, judges, who are neither elected to their offices nor accountable for their actions, are vested with the power to strike down laws that have been made by the duly elected representatives of the people.”60

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What Charter critics echo is Bickel’s counter-majoritarian difficulty and the criticism of judicial review implied by it. The reason why Hogg and Bushell reject that criticism is not because it undervalues rights, still less because of its American origins, but because – in their estimate – it misconceives the theory and practice of Charter review. Their starting point is the Charter as a specific constitutional text, and their contention is that its key provisions leave ample scope for legislative action. The Charter’s most important provisions in this regard are the notwithstanding clause, the reasonable limits clause, the fairness and reasonableness criteria embedded in several legal rights, and the variety of remedial measures available to satisfy the guarantee of equality. With these provisions in mind, they argue that “where a judicial decision striking down a law on Charter grounds can be reversed, modified or avoided by a new law, any concern about the legitimacy of judicial review is greatly diminished.” It is greatly diminished because the Charter provides legislatures with ample opportunities to respond to judicial decisions and thus “the final decision is the democratic one.” Moreover, they examine a number of judicial decisions and consider the legislative responses to them as empirical evidence that the Charter does not erect a system of judicial supremacy inimical to democracy, but institutionalizes a dialogue between the courts and the legislatures on how best to reconcile individual rights with “social and economic policies for the benefit of the community as a whole.”61 If sound, Charter dialogue is an attractive theory of the relationship between courts and legislatures in Canadian democracy. But it is also an incomplete theory of Canadian constitutionalism, and its incompleteness matters no matter which way its democratic credentials are assessed. In one of the earliest critiques of Charter dialogue theory, Christopher Manfredi and James Kelly focused on two main objections. “First, the empirical demonstration on which the [dialogue] metaphor depends suffers from several flaws. Second … the [dialogue] metaphor … provides only a weak response to the normative issues implicit in the democratic critique.”62 Among the empirical flaws were that Hogg and Bushell had focused too much on judicial nullification, yet courts also used other devices for interfering with legislative policy making such as “reading in” to remedy an unconstitutional statute. The most crucial normative flaw, they said, was that the dialogue metaphor simply took for granted that judges had a monopoly on

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correct interpretation, and thereby uncritically equated judicial interpretation of the Charter with the document itself. F.L. Morton went further. He suggested that Hogg and Bushell had employed an inappropriate idea of dialogue and that very little real dialogue takes place between courts and legislatures. “Obeying orders,” he wrote, “is not exactly what most of us consider a dialogue.”63 His contention, which he developed with Rainer Knopff, is that even if legislatures enact new laws in response to adverse judicial rulings, their policy options are still significantly limited by those rulings. When this consideration is coupled with the virtual atrophy of the notwithstanding clause and the frequency with which special interest groups successfully press their claims on the Supreme Court, the result, Morton and Knopff and other critics contend, is far closer to government by judiciary than to democratic dialogue.64 In “Charter Dialogue Revisited,” there is a detailed reply to critics as well as acknowledgement of the extensive discussion that followed the publication of the original paper. As the authors note, by 2006 a total of twenty-seven judicial decisions had referred to the concept of Charter dialogue, the idea had been the subject of speeches by judges and politicians, and it had been discussed in numerous academic courses in law and political science. Moreover, the main conclusions of the original article are reiterated, elaborated, and defended. Two of the replies to critics are particularly noteworthy. First, they argue that many critics have made too much of the dialogue metaphor. They had used the metaphor not to suggest that “courts and legislators were actually ‘talking’ to each other,” but only to show that “Charter decisions usually leave room for a legislative response, and usually receive a legislative response.” Second, to the criticism that the original article had failed to justify judicial review under the Charter, they reply that “dialogue theory does not provide a justification for judicial review.” Instead, they go on to suggest: “What ‘Charter Dialogue’ demonstrated was … that judicial review under the Charter was weaker than is generally supposed. Those who would prefer Canada to revert to a simple parliamentary democracy can take some comfort from our 1997 article.”65 This same consideration is reiterated in another and subsequent reply to critics, published in the volume that contains “Charter Dialogue Revisited.” “Our conclusion is that judicial review is weaker in Canada than it is in the United States. This fact has protected us from the court-packing and court-bashing that are the political staples in the United States.”66

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The comparison with the United States is also made in other defences of Charter dialogue theory. “The Charter,” Kent Roach suggests, “accommodates the democratic and modern state much better than does the American Bill of Rights.” The framers of the Charter, he goes on to say, were “aware of the sometimes unfortunate American experience with judicial activism” and provided the appropriate dialogic remedy for it.67 Moreover, he believes that “democracy can be enriched … when the extremes of judicial and legislative supremacy are avoided and courts and legislatures do what they do best and respond to the inevitable shortcomings of the other.” Such a functional analysis of constitutional roles based on institutional competence and the need for cooperation can provide a strong theoretical endorsement of Charter dialogue so far as Canadian democracy is concerned. But what about Canadian federalism? Canada is also a federation with a complex division of legislative power that courts interpret. On this subject Roach has less to say and what he says is potentially disquieting. “The danger,” he writes, “of the Court having the final word under the division of powers does not, however, mean that judicial activism is equally to be feared under the Charter.”68 Part of the problem created by this kind of proviso is that it seems to postulate a troubling asymmetry between Canadian democracy and Canadian federalism as they relate not only to the Charter of Rights but also to the character and function of judicial review. Moreover, since the Charter cannot be hived off from federalism and the division of powers – as numerous judicial decisions have demonstrated – a significant asymmetry in the theory of judicial review has the potential to bring into question the coherence and viability of Canadian constitutionalism.69 If Canadian federalism matters for Canadian constitutionalism, it should also matter for the dialogue theory. Moreover, to the extent that Charter dialogue theory narrows the focus of Canadian constitutionalism to questions about democracy, it is in tension with the analytical perspective articulated in the Quebec Secession Reference. After identifying four principles as forming the “internal architecture” of the Constitution, including federalism and democracy and minority rights, the Supreme Court insisted that “no single principle can be defined in isolation of the others, nor does any one principle trump … any other.” The Court noted that federalism provided “the lodestar” by which the Constitution is interpreted. As for democracy, the Court described it as a fundamental value, but refused to identify it with

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proceduralism or simply majoritarianism.70 Vriend was decided before the Quebec Secession Reference, but it endorses similar views about Canadian constitutionalism and even provides an explicit reply to Bickel and the counter-majoritarian difficulty. In Canada, Justice Iacobucci wrote, the Charter was adopted in full knowledge of the implications of judicial review and the “trustee role” thrust on judges by it. At the same time, the reasonable limits clause and the override provision were clear signals of “respect … for the legislature and executive role.” What the Charter envisioned, he suggested, was “a more dynamic interaction” and even “a dialogue” between the branches of governance that had the “great value” of enhancing the democratic process. Iacobucci did not stop there in his reply to Bickel, however – and did not rest his reply exclusively on “dialogue.” Even if judicial invalidation of legislation negated the will of the majority, he added, “the concept of democracy is broader than the notion of majority rule.” In Canada, according to Chief Justice Dickson’s celebrated opinion in Oakes, which Iacobucci cited in Vriend, democracy also includes respect for such values as human dignity, social justice, and diverse cultural identities.71 When Vriend and the Quebec Secession Reference are read together, three conclusions emerge: (1) Canadian democracy is much more than majority rule, (2) Canadian democracy is only one of the four components of Canadian constitutionalism, and (3) Canadian judges are not confined to questions of process but have a vital role in articulating the fundamental values of the Canadian constitution based on federalism, democracy, constitutionalism and the rule of law, and respect for minorities.

J u d ic ia l R e v ie w in G reat Bri tai n: D ic e y a n d H is Cri ti cs One of Pierre Trudeau’s aspirations for the Charter was that it would transform Confederation and secure inalienable rights for Canadians, “in the grand tradition” of the 1789 French Declaration.72 To anyone schooled in modern British constitutional theory, however, such an aspiration is difficult to reconcile with Bentham’s famous remark that the 1789 Declaration, with its catalogue of abstract and undefined natural rights, is “nonsense upon stilts.”73 If Bentham’s critique is combined with Dicey’s institutional analysis, the result is one element of a constitutional faith that, until recently, was commonly recited in Britain. “Since at least the 1930s,” Geoffrey Marshall writes, “there

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has been something approaching an official British article of constitutional faith that Bills of Rights contain abstract or … stilted nonsense, fit, perhaps, for the paper constitutions of foreigners and colonials, but not suited to the habits and usages of Westminster.”74 What was suited to Westminster was the sovereignty of Parliament as described by Dicey. With it came distrust of abstract statements of rights, veneration for the rule of law as administered by the ordinary courts, and attachment to the conventions of the Constitution, which ensured that the legal sovereignty of the Queen-in-Parliament never diverged very far from the political sovereignty of the electorate or people. That, in outline, is Dicey’s theory of English constitutionalism. Marshall’s observation, which is pure Dicey, appears in his article on the 1998 u k Human Rights Act. The title of Marshall’s article is “Patriating Rights – With Reservations.” What the reservations are and how they affect the sovereignty of the uk Parliament, the role of the courts, and the rights of the individual are topics of considerable discussion and disagreement. What is less open to dispute is that Britain was and is determined to find its own way. If one part of the background to the Human Rights Act is Dicey’s theory of the sovereignty of Parliament, another part is the European Union (Britain joined in 1972, then voted to leave in 2016) and the European Convention on Human Rights (which Britain signed in 1950 and remains committed to until at least 2022). Under Article 13 of the Convention, everyone whose Convention rights and freedoms are violated “shall have an effective remedy before a national authority.”75 The United Kingdom was the first state to ratify the Convention, but it enacted no implementing legislation. The view of the Lord Chancellor, in 1950, was that the Convention had to be accepted for political reasons, but was an unqualified misfortune for the administration of law. We are not prepared, he wrote, “to encourage our European friends to jeopardise our whole system of law, which we have laboriously built up over the centuries, in favour of some halfbaked scheme to be administered by some unknown court.”76 Nevertheless, in 1965, the Government accepted, without discussion in Parliament, the right of individual petition to the European Commission and Court. “Thus,” Anthony Lester wrote, “was the substance, if not the form of parliamentary sovereignty over fundamental rights transferred from London to Strasbourg, not with a roar but a whisper.” Writing in 1984, Lester believed that Parliament should put matters right by incorporating the Convention. It was wrong, he

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insisted, that the European Court should have become a supreme constitutional court of the u k without parliamentary action, and unhealthy for British judges to be denied the power and responsibility of safeguarding the rights and freedoms of the Convention.77 The Chief Justice of England expressed similar views in “The European Convention on Human Right: Time to Incorporate,” published in 1996. Lord Bingham said that he had been brought up on Dicey and much of the Diceyan picture remained sound. But Parliament had ceded part of its sovereignty, in practice if not in theory, to “a body beyond the mountains” and there were also significant concerns about Parliament as “the elective dictatorship of the majority.” Moreover, the pressures on the Parliamentary timetable meant that human rights issues had difficulty finding a place in the queue and they were not the kinds of issues on which elections were won. To those who insisted that fundament rights were adequately protected by the common law, he replied, why was the u k ’s record not more favourable at Strasbourg? “What I simply do not understand,” he wrote, “is how it can be sensible to entrust the decisions on these questions to an international panel of judges in Strasbourg … but not, in the first instance, to our own judges here.” Incorporation of the European Convention would not “usher in the new Jerusalem.” But it would stifle the damaging belief that it was necessary to go abroad to obtain justice, and reinvigorate the English tradition of fundamental law.78 With respect to “patriating rights,” it is also important to consider “sovereign illimitability” and common law constitutionalism. Dicey and Austin insisted that a sovereign legislature, because it was sovereign, could not legally limit itself.79 Dicey also regarded “sovereignty illimitability” as the first principle of English constitutionalism. In “Britain’s Bill of Rights,” F.A. Mann attempted to refute Dicey using simple examples. “Suppose Parliament enacts,” he wrote, “a statute depriving Jews of their British nationality … or vesting the property of all red-haired women in the State.” He then asked: “Is it really suggested that English judges would have to apply and would in fact apply such a law?”80 De Lolme, writing in 1784, offered a different example. He said that Parliament could do anything except make a man a woman or a woman a man. In reply to De Lolme, Ivor Jennings wrote in 1959: “if Parliament enacts that all men should be women, they would be women so far as the law is concerned.”81 Although the examples chosen by De Lolme, Jennings, and Mann are unsettling,

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the issue of “sovereign illimitability” is theoretically important and it has no simple solution. But one important approach is Hart’s in The Concept of Law. He acknowledges that Parliament has “continuing sovereignty” and cannot legally bind itself. However, he also suggests that a legal system should be analyzed not in terms of “sovereign and subject” but as “the union of primary and secondary rules” with “the rule of recognition” as the most important secondary rule. If, as Hart believes, “continuing sovereignty” is part of the uk’s “rule of recognition,” and if, as he also suggests, “the rule of recognition” can change, then the issue is whether the enactment of a Bill of Rights will change “the rule recognition” as understood by parliament, judges, and the executive. For Hart, the reply to Dicey is largely a matter of “wait and see.”82 The question of common law constitutionalism overlaps with the question of “sovereign illimitability.” It also shifts the jurisprudential focus from Hart to Dworkin’s theory of law. Dworkin rejected not only Austin’s (and Dicey’s) theory, but also Hart’s theory of law in terms of “primary and secondary rules.” Neither theory, he argued, was able to makes sense of mature legal systems and how courts decide “hard cases.” The basic defect of both theories, Dworkin suggested, was their inability to recognize that law includes “principles” and other standards. Unlike commands and rules, principles “fuse” law and morality and make it necessary to reject the legal positivism of Austin and Hart, especially their conception of judicial discretion as policy-making and the separation of law and morality thesis. Dworkin analyzed many judicial decisions to support his theory of “right answers” in hard cases, including Riggs v. Palmer, in which a court invoked the principle that “no one shall be permitted to profit by his own wrong” to interpret a statute, and thereby prevented a grandson who had murdered his grandfather from inheriting property under his will.83 Based on Riggs v. Palmer and other cases, Dworkin developed an interpretive theory of law that he named “law as integrity.” According to Dworkin’s integrity theory, “judges … decide hard cases by trying to find, in some coherent set of principles about people’s rights and duties, the best constructive interpretation of the political structure and the legal doctrine of their community.”84 Part of the importance of Dworkin’s theory is that it has affinities with British common law constitutionalism, as conceptualized, for example, in T.R.S. Allan’s Law, Liberty and Justice. In essence, Allan uses Dworkin’s theory to challenge Diceyean sovereignty and

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to explicate “the legal foundations of British constitutionalism.” Moreover, in criticizing Dicey on sovereignty, Allan also ingeniously reconfigures the Diceyean constitution. Dicey regarded the rule of law, with common law roots at least as old as Magna Carta, as the second principle of English constitutionalism; the sovereignty of Parliament, traceable to the Norman kings and the Glorious Revolution, was its first principle. But, according to Allan, British constitutionalism becomes coherent and defensible only if the order is reversed, and only if Parliament’s supremacy is fitted within principles that form the basis of the rule of law and that judges apply (if necessary) even against Parliament. “Parliament is sovereign,” he writes, “because judges acknowledge its legal and political supremacy.” However, judicial obedience cannot be limitless and is constituted by the boundaries of the morality of parliamentary democracy. “An enactment which threatened the essential conditions of any plausible conception of democratic government,” Allan writes, “would lie beyond those boundaries … and forfeit … any claim to be recognized as law.”85 In Dr Bonham’s Case (1610), Lord Coke insisted that “the common law will controul acts of parliament, and sometimes adjudge them to be utterly void” if they are “against common right and reason, or repugnant, or impossible to be performed.”86 The recurring issue is whether it is possible, and desirable, to modernize Lord Coke on judges and displace Dicey’s sovereign Parliament.87 The debate about the Diceyean constitution remains unsettled, even after the enactment of the 1998 Human Rights Act and other major constitutional changes. One view, put forward in 2007 by a distinguished Hamlyn lecturer, is that the sovereignty of Parliament has been finally displaced by “the sovereignty of law” and also by what he called the “the European way.”88 But that view was contradicted, even before the u k later voted to leave the European Union in 2016, by a former chief justice. He argued that none of the changes undermined the sovereignty of Parliament. The “curtailment of the Westminster Parliament’s power to legislate,” he writes, “takes effect by express authority of the Westminster Parliament, which … it retains the power to revoke.” He also quotes the White Paper that introduced the Human Rights Bill with its statement by the prime minister, Mr Blair. The prime minister said that the bill did not confer power on judges to set aside the decisions of Parliament and noted that there was “no evidence to suggest that they [the judges] desire this power, nor that the public wishes them to have it.”89 The Human Rights Act

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is, nevertheless, a significant constitutional document with a decidedly British twist. It resembles, in one respect, the New Zealand Bill of Rights by requiring the court to interpret legislation, “so far as possible,” in a way that is compatible with the European Convention. But it is also more than an interpretation statute and empowers the court, when a conflict exists, to make “a declaration of incompatibility.” Once a judicial declaration is issued, ministers of the Crown decide what to do. Ministers also scrutinize bills, for compatibility with the Convention, during the legislative process.90 The contrast is with the United States, particularly the theory of judicial review articulated in Marbury v. Madison and subsequently utilized in the constitutional crisis of the New Deal. In The Struggle for Judicial Supremacy (1941), Robert Jackson observed that the American Supreme Court narrowly averted a major crisis by finally upholding President Roosevelt’s New Deal, after earlier declaring it unconstitutional. However, although the immediate crisis had dissipated, there was, Jackson insisted, “no permanent reconciliation” under the US Constitution between representative government and judicial authority, especially as Marbury v. Madison had established judicial supremacy in constitutional interpretation. “The vice of judicial supremacy … in the field of policy,” he explained, “has been its progressive closing of the avenues of peaceful and democratic conciliation of our social and economic conditions.”91 It was Jackson’s belief (as a former attorney-general and future associate justice) that the American Supreme Court could succeed only if it heeded counsels of self-restraint. In the language of contemporary constitutional theory, Marbury v. Madison postulates “strong-form judicial review” based on judicial supremacy, whereas the u k Human Rights Act is more cautious about judicial power and institutionalizes a version of “weakform judicial review” that, with the Canadian Charter and the New Zealand Bill of Rights, constitutes “the new Commonwealth model of constitutionalism.”92 Expert opinions differ, however, on the new British approach. Some compare it favourably to the Canadian Charter’s notwithstanding clause, and believe that it avoids some of the problems that have led to its infrequent use. These commentators worry, however, that Parliament may find it easier to routinely defer to judicial declarations of incompatibility – and warn that if this were to occur, the Human Rights Act would simply be another version of judicial supremacy.93 Others observe that the “fast-track” option that expedites Parliament’s

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response to a judicial declaration of incompatibility is unlikely to be used for the benefit of unpopular minorities. They also express the concern that Ministers appear to be put in the untenable position of being “judges in their own case” with respect to declarations of incompatibility.94 A third view is that the Human Rights Act institutionalizes a genuine democratic approach to human rights and avoids a pernicious slide into legalism that regards rights issues as matters to be settled exclusively by lawyers and judges. Unlike the legalistic approach, the Human Rights Act invites judicial scrutiny, while explicitly requiring Parliament (and the people) to make the final decision.95 There is, lastly, the view that the Human Rights Act relegates Dicey’s concerns about abstract declarations of rights to the dust pin and marks a fundamental change in British constitutionalism. On this view, it becomes possible and desirable to challenge other aspects of Dicey’s theory because the Human Rights Act “provides a catalyst … to rethink the foundations of the uk Constitution.”96 The rethinking of British constitutional fundamentals, if pushed far enough, does not entirely escape Dicey. He also wrote England’s Case against Home Rule (1886). It contains critiques of devolution and federalism as proposals for the uk , which are difficult to ignore. Vernon Bogdanor, for example, suggests that Dicey’s book “is very relevant to the contemporary debate.”97 Among the issues raised by Dicey were nationality and judicial review. Dicey suggested that a federal government was, of all constitutions, “the most artificial” and most difficult to operate, because it required a “predominant national allegiance” in additional to local loyalties. What would keep the United Kingdom together, Dicey asked, if it adopted radical devolution or federalism? As for judicial review, Dicey probed its political dimensions and suggested that separatists, nationalists, and strong supporters of local autonomy would find it no easier “to respect an Imperial or Federal tribunal than to bow to the will of the Imperial Parliament.” Dicey concluded his analysis by noting that “a great crisis” existed and every course involved “perplexity” and “danger.” He also summarized England’s case against Home Rule and suggested that “England has grown to greatness” because of its adherence to two principles: “the supremacy of the whole state” and its use of that supremacy to secure “to every citizen … the [equal] rights … conferred … by law.” These two principles, Dicey insisted, constituted “the moral basis of the Constitution.” Proposals that neglected them would lead “the nation to calamity and to disgrace.”98 Dicey’s conclusion can be

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restated as a question. If the United Kingdom is to have a radically new constitution, what will be its new moral basis and new constitutional faith?

F u n da m e n ta l V a l u e s a nd the Functi ons o f   J u d ic ia l Revi ew Much of the contemporary discussion of Bills of Rights and judicial review is conducted in the shadow of Marbury v. Marbury and the question of judicial supremacy. Why else does the 1998 u k Human Rights Act adopt the method of “a declaration of incompatibility” or the 1982 Canadian Charter include the notwithstanding clause, if not to protect the political supremacy of democratic legislatures and to counter the supremacy of judges?99 Chief Justice Marshall attempted to decide the issue of judicial review by portraying it as a delegation of power from the people to the court to protect their rights and by insisting that constitutional interpretation was simply a matter of judges saying what the law is. Unlike the chief justice, Bickel questioned the democratic credentials of judicial review, turned to the ideas of Holmes, Hand, and Brandeis, and developed a theory of judicial prudence as an alternative to judicial activism and judicial supremacy. Ely defended judicial activism, but not judicial supremacy. Unlike either Chief Justice Marshall or Bickel, Ely developed a processperfecting theory of constitutional review, which he identified with the Warren Court, “Footnote Four,” and Madison’s theory of representative government. In Canada, the language of supremacy, judicial and legislative, is increasingly challenged by a theory of Charter dialogue. Britain has retained the sovereignty of Parliament, while accepting constitutional change. But “any future Dicey” would almost certainly note that parliamentary sovereignty is not what it once was, that courts have become more important, and that “no power … [is] immune from challenge in the light of rights-based principles.”100 One of the important ideas for the discussion of judicial review, which has grown out of the critique of judicial supremacy, is Bickel’s insistence on the multiple or triune function of judicial review – checking, legitimating, or doing nothing. To this list must be added, at the very least, (4) the Canadian idea of dialogue and (5) the British declaration of incompatibility. The Canadian and British additions are not examples of Bickel’s “do nothing,” but they do overlap with his ideas about judicial prudence in a democratic polity. However, judicial

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review also has another function, which Bickel’s triune classification and even the expanded list only dimly perceives, and which is more closely related to judicial insight than to judicial prudence and its offshoots. “The function of a judge,” Owen Fiss has suggested, “is to give concrete meaning and application to our constitutional values.” The judge, he goes on to say, examines the constitutional text, history, and social ideals with the objective of finding “what is true, right and just … [and] does not become a participant in interest group politics.”101 Similarly, Philip Bobbitt has called for the recognition of the crucial role performed by ethical argument in constitutional law. “By ethical argument,” he writes, “I mean constitutional argument whose force relies on a characterization of American institutions and the role within them of the American people.” That is, “the sort of people we are and the means we have chosen to solve political and customary constitutional problems.”102 Not only is the idea of judicial review as ethical argument about constitutional values different from Bickel’s “do nothing” theory of judicial prudence, but it also describes an important function of judicial review that is not easily subsumed under Ely’s process-perfecting review, or Charter dialogue theory, or British theorizing about declarations of incompatibility. In the United States, constitutional argument as ethical argument appeals ultimately to “we the people.” No one has taken this foundational fact more seriously than Bruce Ackerman in his two-volume study entitled We the People. It is Ackerman’s contention that American constitutionalism establishes a dualist theory of democracy in which normal politics or interest group politics is sharply distinguished from constitutional creation. In normal or interest group politics neither Congress nor the President can ordinarily claim to speak for the fundamental commitments of Americans or for more than a fraction of the people. The fundamental commitments of Americans – “we the people” – are reserved for and expressed at periods of constitutional creation that Ackerman identifies with the Founding, the Civil War Amendments, and the New Deal. Moreover, Ackerman uses “we the people” to criticize both Bickel’s counter-majoritarian difficulty and Ely’s proceduralism. For Ackerman, the problem with Bickel’s theory is that it mistakenly identifies normal or interest group politics with “we the people” and fails to see how the politics of constitutional creation not only differs from normal or interest group politics but also justifies judicial review. The problem with Ely’s theory of processoriented judicial review is that it trivializes the substantive principles

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of American constitutionalism and fails to recognize that “we the people” have fundamental commitments that bind us together in ways that normal or interest group politics is not ordinarily entitled to modify.103 Bickel and Ely simplify almost beyond recognition, Ackerman argues, the constitutional faith of “we the people” of the United States and the role of the Supreme Court in relation to it.104 Constitutional argument as ethical argument is also important in Canada. But in Canada, it cannot appeal to “we the people.” To what, then, can a Canadian constitutional faith appeal? Part of the answer must be to the fundamental values and principles that constitute what the Supreme Court has called the “internal architecture” of the Canadian Constitution. These values and principles include a continuing dialogue about the Charter; they also reached back at least to Confederation and require reflection on the significance of federalism, democracy, and Aboriginal rights. What is less evident, and what the Supreme Court has not attempted to answer, is whether these fundamental principles and values are sufficient to bind Canadians together – or will questions of political justice and collective identity prove unsolvable and pull the country apart? Difficult questions about fundamental values have also become important in contemporary Britain. Issues about home rule and federalism and Bills of Rights have become inescapable amidst an uncertain relationship with the European Union. The choice for a pluralistic Britain and British judges is, increasingly, between Dicey and something resembling the Canadian model.

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5 Free Speech for the Thought That We Hate? Canadian Constitutionalism, British Pluralism, and First Amendment Exceptionalism Can a da , B r ita in , a n d A m eri can Free S peech E xc e p t io n a li sm In The Law of the Constitution, Dicey observed that the “unlimited authority” of the British Parliament was “the exact opposite” of the American form of government. But he also insisted that the two constitutions rested on “the same notions of law, of justice, and of the relation between the rights of individuals and the rights of the government.” Writing in 1885, neither Dicey nor anyone else could foresee the development of American free speech exceptionalism under the First Amendment, or the difficult issues created by hate speech for countries that value both free expression and democratic inclusion. Moreover, Dicey devoted very little attention to philosophical texts on free speech and did not even mention John Stuart Mill’s classic discussion of the subject in On Liberty. Instead, his chapter on “the right to freedom of discussion” focuses on the contrast between the English and French approaches to rights. The French approach, he said, consisted of an abstract and ineffectual Declaration of Rights. The English approach was practical and no one familiar with it could “maintain that the law of England recognizes anything like that natural right to the free communication of thoughts and opinions.” In England, personal freedom was secured by the writ of habeas corpus and the rule of law as administered by the ordinary courts. In England, unlike France, no one had to worry about unlawful arrest or executive arbitrariness and anyone could say or publish anything he wished, subject only to lawful punishment if he was not legally entitled to say or publish it.1

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But what happens if the focus is shifted from the ineffectual French Declaration to the First Amendment or the Canadian Charter? The English or Diceyan approach certainly remains important but it becomes one approach among equals, at least with respect to efficacy and judicial enforcement. Moreover, once the issue of efficacy is no longer primary, it becomes possible to ask about the meaning, purpose, and limits of free speech and its relationship to other values. Although Dicey unquestionably believed in freedom, he has little to say about these topics – partly because on his analysis freedom is a residue, the area left unregulated by the legislature and the common law.2 That is not the view of the American Supreme Court or the Supreme Court of Canada. Their concern is with free expression as a protected constitutional value capable of controlling or modifying legislation, and their focus is on the relationship between free speech and equality, minority rights, public order, and democracy. “One of the difficulties of the law relating to free speech … in Britain,” it has been suggested, “is that it results from a miscellaneous and disconnected heap of decisions under different statutes.”3 That result may be partly due to Dicey’s influence, although the 1998 uk Human Rights Act takes a step away from Dicey’s brand of theorizing. Constitutional theorizing about free speech has not, in any case, remained where Dicey left it. Moreover, the most striking post-Dicey developments have not been in Britain or Canada, but in the United States. Freedom for Americans is a constitutional faith, a civil religion, and a way of life; and among the freedoms that Americans value most are the freedoms of the First Amendment, especially freedom of speech. Since government, a contemporary American free speech theorist has explained, may not under the First Amendment prohibit the speeches of the flat-earthers because of their patent falsity, then it may not distinguish between espousal of racial equality and racial hatred, or outlaw public denials of the Holocaust.4 Numerous judicial decisions articulate the strong contemporary American commitment to free speech or what (from a comparative perspective) has been called “American free speech exceptionalism.” The overwhelming message of contemporary First Amendment jurisprudence is that “what might look like senseless over-protection of speech … in fact reflects hardlearned lessons [by Americans] about what is needed to adequately protect the right of dissent in a democratic society.”5 Looking backward, many of those “hard-learned lessons” were brilliantly anticipated by Justice Holmes. “If there is any principle of the Constitution,”

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he wrote in a famous dissenting opinion, “that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.”6 Unlike Americans, Canadians do not privilege free expression, or regard it as the linchpin of their constitution, partly because their deeply pluralistic identity brings with it different “hard-learned lessons.” Regina v. Keegstra, a landmark decision by the Supreme Court, helps to explain why this is so. The background to Keegstra includes the Report of the Special Committee on Hate Propaganda in Canada; among its progeny is Regina v. Butler, the Court’s decision on sexist pornography. In the United States, even the most hateful racist and sexist speech is protected if it has a political message and can be regarded as part of the public dialogue engaged in by free citizens in a democratic republic. As a result, material that is censored in Canada under the Keegstra and Butler decisions circulates freely in the United States. Civil libertarians frequently endorse the American position and condemn the Canadian position.7 Nevertheless, Keegstra and Butler are important Charter decisions that reveal a great deal about the differences between the Canadian and American constitutional cultures. Underpinning Keegstra and Butler are not only different moral values than those embraced by American constitutionalism but also recognition of the distinctive requirements for sustaining the Canadian identity. In this regard, the key and partly articulated premise of Keegstra is also the key and partly articulated premise of the Report of the Special Committee on Hate Propaganda in Canada, which the Court cited and approved.8 The Canadian community has the right to protect itself from the corrosive effects of hate propaganda because, in the multicultural society and multinational country that is Canada, such propaganda undermines the confidence that various groups must have in each other to live under a common constitution and recognize each other as equal citizens. Canadian pluralism is unlike American pluralism, and the differences matter. “Canada,” it has been said, “has more hate propaganda legislation than any other country in the world.”9 The United States also stands alone. It has virtually no valid hate propaganda legislation.10 As for Britain, Dicey believed that despite enormous differences between the British and American systems of government, the two constitutions rested on “the same notions of … the rights of individuals and the rights of the government.” But contemporary Britain does

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not endorse anything even remotely similar to American free speech exceptionalism, and British pluralism increasingly resembles Canadian pluralism.11 The focus of this chapter is primarily on Canada and the United States, although Britain is also considered. Its main thesis is that Canadian pluralism embodies a different political morality and different constitutional faith than the American model, which in turn has significant implications for free speech theory.

J u s t ic e H o l m e s a n d F i rs t Amendment E xc e p t io nali sm No account of free speech in the United States can ignore the influence of Justice Holmes or the crucial shift from Schenck to Abrams. Decided in March of 1919, Schenck dealt with free speech in wartime. Writing for the Court, Holmes articulated the “clear and present danger” test and noted that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre.” Speech can be suppressed if there is “a clear and present danger” that it will bring about “the substantive evils that Congress has a right to prevent.”12 Abrams was decided only eight months later, but Holmes had second thoughts and expressed them in an important dissent.13 Schenck countenanced restriction based on the bad tendencies of an utterance; the Abrams dissent insisted that the utterances had to be “immediately dangerous.” Even more important was Holmes’s formulation of a philosophy of free speech, which transformed the clear and present danger test into a speech-protecting formula. The test of truth, he said, is not the power of persecution to “sweep away all opposition,” but the ability of thought “to get itself accepted in the competition of the market.” Holmes noted that “time has upset many fighting faiths,” advocated “free trade in ideas,” and warned Americans to be “eternally vigilant against attempts to check the expression of opinions that we loathe.”14 Roscoe Pound described the Abrams dissent as “a document of human liberty” worthy of a Socrates, a Milton, or a Mill. Zechariah Chafee called it “a magnificent exposition of the philosophic basis” of the First Amendment.15 Holmes wrote other opinions, and joined Justice Brandeis’s concurring opinion in Whitney, which restated the clear and present danger test and expanded the philosophical exploration that Holmes had begun. Brandeis said that advocacy of law-breaking was not enough to justify suppression. To justify suppression, advocacy had

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to be replaced by incitement, coupled with the belief that the incitement to law-breaking would be immediately acted upon. “Those who won our independence by revolution,” he wrote, “were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.” For Brandeis, free speech was essential if people were to “develop their faculties” and confront their fears. “Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fear.” He also insisted that “public discussion was a political duty,” that democratic self-government required the vigorous discussion of “supposed grievances and proposed remedies,” and that “the greatest menace to freedom is an inert people.” Suppression was justified, he said, if “the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.” But if there was time to expose the falsehood through discussion, or to avert the evil by education, then “the remedy to be applied is more speech, not enforced silence.”16 Holmes appealed to human fallibility and even to a deep skepticism.17 In Whitney, Brandeis’s emphasis was on the American commitment to democracy and the expansive right to free speech that it conferred on the American people. What Holmes and Brandeis identified was the political significance of the other-regarding aspects of speech. The First Amendment protected speech as public communication; it did not protect speech as talk or as self-expression.18 “The First Amendment,” wrote Alexander Meiklejohn, “is not the guardian of unregulated talkativeness.”19 Even more noteworthy is the Supreme Court’s decision in Chaplinski, with its insistence that “certain well-defined and narrowly limited classes of speech” fell outside the First Amendment. According to the Court, the First Amendment did not protect “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words – those which by the very utterance inflict injury or tend to incite an immediate breach of the peace.” The reason for their exclusion, the Court explained, was that such utterances were “no essential part of any exposition of ideas” or “a step to truth,” and any benefit that might be derived from them was “clearly outweighed by the social interest in order and morality.”20 In the language of Holmes and Brandeis, such utterances were no part of the “free trade in ideas” and did not contribute to “public discussion.” Part of the significance of Roth is that it was the first case in which the dispositive question was whether “obscenity is utterance within the area of protected speech and press.” Writing for the majority,

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Justice Brennan said that the Court had always assumed that it was not. After reviewing both constitutional history and the history of libel laws, he said that “the unconditional phrasing of the First Amendment was not intended to protect every utterance.” He also quoted the Chaplinsky decision, which explicitly recognized the existence of excluded classes of speech, such as fighting words and the obscene. Moreover, he noted that the First Amendment was fashioned “to assure unfettered interchange of ideas” and that “all ideas having even the slightest redeeming social importance” came within its ambit, but that obscenity was “utterly without redeeming social importance” and should be restrained. Sex, he said, is not the same as obscenity. On the contrary, sex is “one of the vital problems of human interest and public concern.” Unlike sex, obscenity appealed to the “prurient interest” as judged by “contemporary community standards,” and was not protected by the First Amendment.21 In Miller, Chief Justice Burger said that although obscenity was once thought to be “utterly without redeeming social importance,” what the prosecution actually has to show is that “the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”22 Unlike Roth and Miller, American Booksellers is about sexist pornography rather than just plain obscenity. Moreover, it is a Federal Court of Appeals decision that applied principles and doctrines repeatedly affirmed by the Supreme Court. At issue was an Indianapolis ordinance, which established civil rights remedies for women (and others) presented as sexual objects for domination, exploitation, and humiliation. One of the main purposes of the ordinance was to define pornography as a practice that discriminates against women, and to protect them from it. But the ordinance, said Judge Easterbrook, departed from the Supreme Court’s test for obscenity. It did not refer to “the prurient interest” or to “community standards,” nor did it “consider whether the work has literary, artistic, political or scientific value.” He acknowledged that sexist pornography often creates harmful stereotypes and produces other negative effects; “yet this simply demonstrates the power of pornography as speech.” Moreover, the ordinance discriminated both with respect to the content or subject of speech and its viewpoint. Quoting Justice Jackson, Judge Easterbrook said that “no official … can prescribe what shall be orthodox.” He also insisted that a key difference between “our society” and totalitarian government is “our absolute right to propagate opinions that the government finds wrong or even hateful.” 23 The

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Indianapolis ordinance and its supporters, he insisted, put too little faith in the American commitment of free speech and too much faith in government as the paternalistic censor of thought and culture. Like sexist pornography, hate speech seeks to construct a world defined by stereotypes and saturated with “words that wound.”24 It is also the subject of landmark decisions by the Supreme Court, which consistently affirm that even hateful speech is protected speech under the First Amendment. One such decision is R.A.V. v. St Paul. The case involved a teenager convicted under a local hate speech ordinance for burning a cross on a Black family’s lawn. Under the ordinance, anyone who placed on public private property a symbol or object, including a burning cross or Nazi swastika, which “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” was guilty of a misdemeanour. The lower court, using Chaplinski, interpreted “arouses anger, alarm or resentment” as ­limited to “fighting words,” and the Supreme Court accepted the restrictive interpretation. Nevertheless, the ordinance was held to be unconstitutional on the ground that it engaged in an unacceptable degree of content discrimination and even went to viewpoint discrimination. Writing for the majority, Justice Scalia compared fighting words to a noisy sound truck, acknowledged that both could be regulated, but insisted that “the government may not regulate use based on hostility – or favoritism – towards the underlying message expressed.” It was not permissible under the First Amendment to forbid the use of “fighting words” in relation to race or religion for example, but allow their use in relation to union membership or political affiliation. Nor did St Paul have authority “to license one side of the debate to fight free style, while requiring the other to follow Marquis of Queensberry rules.” Burning a cross in someone’s front yard was reprehensible. “But St Paul,” Scalia wrote, “has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”25 Free speech in the United States has moved beyond Justice Holmes, yet it also frequently returns to him. The “clear and present danger test” has had many critics, and at least since Brandenberg v. Ohio – a hate speech case decided in 1969 – the Supreme Court has used formulas that it regards as even more protective of free speech. However, other Holmesian ideas remain omnipresent such as “freedom for the thought that we hate” and his theory of the US Constitution as an experiment in living based on imperfect knowledge and “free trade

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in ideas.” Moreover, it was Holmes who insisted, in his Abrams dissent, that the First Amendment abolished the common law crime of seditious libel.26 The Supreme Court has moved beyond the clear and present danger test but caught up with Holmes in other respects. It has also used Holmesian arguments to narrowly interpret the excluded categories of speech under Chaplinski. Neither Judge Easterbrook’s opinion in American Booksellers nor Justice Scalia’s opinion in R.A.V. v. St Paul, which protect the hate speech of sexist pornographers and racists, is conceivable without the free speech theory and the distinctive American constitutional faith articulated by Holmes.

H at e S p e e c h in Canada: Keegstra a n d Butler Canadians cherish their distinctiveness, yet they also share a number of important values with Americans such as democracy and respect for individual rights. Moreover, the American achievement in constitutional government with an entrenched Bill of Rights is so important that Canadians in the Charter era cannot ignore it, and are cautious in departing from it even when they have good reasons for doing so. Hate speech is a notable example. In Regina v. Keegstra, a majority of the judges did depart from American doctrine, but only after attempting to show that American case law could be interpreted in such a way as to support the restriction of hate speech that they favoured. The dissenting judges, in an opinion written by Justice McLachlin, responded by insisting that the majority had misunderstood the American position, and concluded in Holmesian fashion that “if the guarantee of free expression is to be meaningful, it must protect expression which challenges even the very basic conceptions about our society.”27 Keegstra was the 4–3 decision of a sharply divided court. There was no disagreement about American doctrine in Regina v. Butler, the leading post-Charter decision on sexist pornography. But Butler accepted, for the most part, the analysis of hate speech articulated in Keegstra and simply left to one side the issues of First Amendment exceptionalism and Canadian distinctiveness. As a result, there is much that Keegstra and Butler left unsaid about the ethics of Canadian constitutionalism. The Keegstra case raised difficult questions about free speech, yet the facts of the case are simple enough and the problem of hate speech has dimensions that reach beyond Canada or the United States. In

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Britain, for example, which has a long history of controlling various forms of hate speech, including blasphemy (until 2008) and religious hatred (after 2006), racist speech as hate speech falls under the 1965 Race Relations Act and is categorized as an offence against public order.28 In Canada, a hate speech provision became part of the Criminal Code in 1970. It was largely based on the 1966 Report of the Special Committee on Hate Propaganda in Canada. The authors of the Report noted that society had become more heterogeneous during the last century, that modern techniques of propaganda used emotion to drive out reason, and that times of stress produced a search of scapegoats. After reviewing hate speech legislation in other countries as well as factors of special importance for Canada, the Report recommended legislation that would forbid (a) advocacy of genocide, (b) incitement to hatred of groups likely to occasion a breach of the peace, and (c) group defamation.29 James Keegstra was charged under the section of the Criminal Code that prohibits the communication, in public, of a statement that “wilfully promotes hatred against any identifiable group … distinguished by colour, race, religion, or ethnic origin.”30 Keegstra was a high school teacher in Eckville, Alberta, from the early 1970s until his dismissal in 1982. He taught anti-Semitic views and expected his students to reproduce his teaching. He described Jews as “treacherous,” “sadistic,” and “child killers.” Occasionally, his hate messages also included Blacks, Catholics, and other groups. For the Supreme Court, the question was whether Keegstra’s hate speech was protected by the Charter’s guarantee of free expression. The dissenting judges said that it was protected, based partly on concerns about the negative effects of the anti-hate legislation.31 In contrast, the majority held that the restriction of hate propaganda was justified under the Charter’s reasonable limits clause and was consistent with Canada’s commitment to a free and democratic society. “The special role given equality and multiculturalism in the Canadian constitution,” wrote Chief Justice Dickson, necessitates a departure from the position “that the suppression of hate propaganda is incompatible with the guarantee of free expression.” There were real harms associated with hate propaganda, and Canadian democracy itself was also endangered by its presence. Hate propaganda, the Chief Justice said, conveys ideas anathematic to democratic values and “inimical to the democratic aspirations of the free expression guarantee.”32 The majority opinion also contains a section entitled “The use of American constitutional jurisprudence.” In it, Chief Justice Dickson

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insisted that a proper understanding of American constitutional law was essential because those who attacked the validity of Canadian hate propaganda legislation drew heavily on First Amendment jurisprudence. But, although he found American free speech jurisprudence useful, he also expressed significant doubts as to its applicability to hate propaganda in Canada. It is at this point, however, that his argument becomes difficult to follow and, according to his critics, confused and fallacious. For after noting (incisively) that the Charter differs from the US Bill of Rights and actualizes a uniquely Canadian vision of a free and democratic society, he added (implausibly) that it is “not entirely clear that Beauharnais must conflict with existing First Amendment doctrine” and “it would be rash … to see First Amendment doctrine as demanding the striking down of … [Canada’s hate speech provision].”33 The response to Chief Justice Dickson’s excursion into First Amendment jurisprudence has been anything but complimentary. In reply to him, a prominent American constitutional lawyer flatly stated that later judicial decisions “have knocked the legs” from under Beauharnais v. Illinois with the result that it is “no longer good law.”34 The implication for Canada, according to the critics, is not only that Chief Justice Dickson misunderstood First Amendment jurisprudence, but also that the majority decision in Keegstra to uphold hate speech legislation is incompatible with a genuine commitment to free expression and democratic self-government.35 That criticism, however, overlooks the most important part of Dickson’s argument – namely, his insistence that Canadian democracy is unlike American democracy and that the Charter is not a copy of the US Bill of Rights. In her dissenting Keegstra opinion, Justice McLachlin disputed Dickson’s assessment of First Amendment jurisprudence, outlined a comprehensive philosophy of free speech, and applied that philosophy to the Charter. Much of her opinion focused on the Charter’s reasonable limits clause. “The real question,” she wrote, “is whether the means – the criminal prohibition of wilfully promoting hatred – are proportionate and appropriate to the ends of suppressing hate propaganda in order to maintain social harmony and individual dignity.” They were not, she suggested, because the legislation in question was an ineffective way of curbing hatemongers and might only serve to glorify them. She worried about the “chilling effect on defensible expression by law-abiding citizens,” undertook a “cost-benefit analysis,” and suggested that “any questionable benefit of the legislation

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is outweighed by the significant infringement on … free expression.” But Justice McLachlin’s opinion did not focus exclusively on costbenefit analysis and the reasonable limits clause. She also reflected on the significance of free expression in relation to other Charter rights. “Freedom of expression,” she wrote “is unique among the rights and freedoms guaranteed by the Charter … [because it] is fundamental to our democracy and hence to all the other rights and freedom.”36 Such a conception of free expression seems at odds with a cost-benefit analysis in which all rights and freedoms are equally weighed together – and, in any case, it bears a strong resemblance to Justice Holmes’s belief that free speech more imperatively calls for attachment than any other right or freedom. The dissenting opinion in Keegstra attempted to combine a Canadian methodology for balancing rights with ideas about the priority of free expression similar to First Amendment exceptionalism. After Keegstra comes Butler. It contains no dissenting opinions and no discussion of First Amendment jurisprudence. Justice Sopinka, who wrote the main opinion, repeatedly cited Keegstra and insisted that “obscenity which degrades and dehumanizes is analogous to … hate propaganda.” At issue was the Charter’s free expression provision, the right to sexual equality, and the Criminal Code’s prohibition of obscenity. Under the Code, “any publication a dominant characteristic of which is the undue exploitation of sex … [is] deemed to be obscene.” The conceptual core of Sopinka’s opinion is the division of pornography into three categories: explicit sex with violence, explicit sex without violence that degrades or dehumanizes people, and explicit sex without violence that is neither degrading nor dehumanizing. The third category is exempt from regulation unless it employs children. However, material which couples sex with violence or exploits sex in a degrading and dehumanizing manner can be restricted: it fails the community standards test of tolerance “because it is perceived by public opinion to be harmful to society, particularly women.” A direct link between obscenity and harm, Justice Sopinka admitted, is difficult to establish in the traditional way. But Parliament can restrict free expression under the reasonable limits clause based on “a ‘reasoned apprehension of harm’ resulting from the desensitization of individuals exposed to materials which depict violence, cruelty, and dehumanization in sexual relations.” Under the Charter, Parliament cannot enforce morality as such or legislate for the prevention of “dirt for dirt’s sake.” But Parliament does have a right to safeguard “a free and democratic

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society” and “moral disapprobation” to protect sexual equality is an appropriate response when based on Charter values.37 Catharine MacKinnon, whose views on pornography were rejected in American Booksellers, praised Butler. It was, she said, “a stunning legal victory for women” and “of world historic importance.”38 For MacKinnon, Butler and the majority opinion in Keegstra demonstrated that Canadian judges took equality seriously. As a result, they treated with justified skepticism such staples of First Amendment jurisprudence as the “slippery slope” and the litany of “political speech” and they refused to reduce “the harm of hate propaganda or pornography to its ‘offensiveness.’” Moreover, MacKinnon insisted that American judges could arrive at similar results by giving more weight to the Fourteenth Amendment’s promise of equality and less to the First Amendment’s guarantee of free speech. In the United States, sexist pornography and hate speech legislation fail judicial scrutiny, she wrote, yet “they might, with constitutional equality support, survive.”39 Her assessment has not been the last word. In two seminal articles, Ronald Dworkin has defended the right to pornography, endorsed Judge Easterbrook’s decision in American Booksellers, and criticized what he describes as MacKinnon’s conflation of positive and negative freedom. Dworkin acknowledges that much pornography is “grotesquely offensive.” However, he denies that there is strong evidence linking sexist pornography to an increase in rape or sexual assault; and in the absence of such evidence “the speech we hate is as much entitled to protection as any other.” Moreover, MacKinnon’s attempt to empower women through a regime of censorship depends on a conception of positive liberty that allows people to be governed “ruthlessly” by rulers who claim to know their “true, metaphysical will.” “Freedom of speech, conceived and protected a fundamental negative liberty,” Dworkin insists, “is the core of the choice modern democracies have made, a choice we must honor in finding our own ways to combat the shaming inequalities women still suffer.”40 The debate between MacKinnon and Dworkin is a significant debate between a radical feminist and a liberal rights advocate. But despite their many disagreements, MacKinnon and Dworkin share a common premise: that questions about free speech and censorship, even when considered within the different contexts of Canadian and American constitutionalism, have one right answer. The premise of a single right answer is often taken for granted, but it is a questionable assumption in the human sciences and constitutional theory.41 To question it all

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that is required is to acknowledge that there is more than one admirable way of life and more than one right constitution. Moreover, a theory of society differs from natural science, as Charles Taylor has noted, precisely because it deals with institutions and practices that rest on self-understandings.42 In some cases, theory will reveal that a practice or institution is vain or deeply muddled and should be abandoned. But there is a great difference between abandoning or correcting a practice or an institution in a manner that takes account of a nation’s constitutional experiences, and doing so in favour of an abstract model or in pursuit of a right answer. Puzzling questions about American free speech exceptionalism and Canadian hate speech laws are part of the untidy worlds of American and Canadian constitutionalism. What they often require is deeper explorations of pluralism, rather than monistic assumptions.

T h e O v e r p ro t e c t io n of Speech: Ca n a d ia n a n d A m e r ican Pers pecti ves The dynamic core of American First Amendment exceptionalism is “freedom for the thought that we hate.” But American free speech theory, as articulated in Holmes’s Abrams dissent, contains a paradox that has more than one solution and, in any case, acquires new dimensions when posed from within the context of Canadian pluralism. The paradox was identified by John Wigmore, who in 1920 insisted that Holmes’s plea for “free trade in ideas” amounted to little more than “freedom of thuggery” and “licensed turbulence.” Moreover, Wigmore believed that the constitutional guarantee of free speech was increasingly appealed to by “fanatical minorities … committed to some new revolutionary belief, and impatient of the usual process of rationally converting the majority.”43 To protect the extremist speech of such fanatical minorities seemed to him, as Lee Bollinger has noted, “anomalous, paradoxical, even perverse.” In fact, a commitment to democracy, or to truth seeking, “would seem to lead one to want to prohibit, not protect, speech activity designed to overturn those processes.”44 Wigmore regarded Holmes’s Abrams dissent as fundamentally misguided and warned Americans against the overprotection of speech. Much of American free speech theory is an engagement with the paradox identified by Wigmore. It accepts the paradox but rejects Wigmore’s solution. Wigmore’s paradox also has unique relevance for free expression and its limitations in Canada,

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once the distinctive features of Canadian pluralism are brought within its compass. Although Holmes gradually prevailed, the paradox of overprotection has continued to engage American theorists. In “The Exceptional First Amendment,” Frederick Schauer notes that even among liberal democracies that understand the importance of protecting free speech, the United States is a “recalcitrant outlier.” Schauer deliberately avoids offering an opinion on whether the American position “is for good or for ill.” Instead, his focus is on explanation and he sketches a “series of hypotheses” for further refinement and testing. One hypothesis is that the US Bill of Rights is “an imbalanced text” that privileges free speech and denies Congress the power to infringe it. Unlike the Canadian Charter and the European Convention on Human Rights, the First Amendment makes no provision for “overrides” or “reasonable limits.” Another is that Americans have a strong “preference for liberty” that stems from the almost complete absence in the United States of socialist or social democratic traditions. Still another is the existence of a “culture of distrust,” which is so strong that Americans are suspicious of official valuation of ideas and skeptical of the ability of government to distinguish the true from the false. He also sketches a hypothesis based on “the political culture of the First Amendment.” In the United States, strong interest group support for free speech (including anti-McCarthyism and the civil rights movement) emerged prior to the strengthening of many equality-focused interest groups. Finally, he believes that a necessary but not sufficient condition of First Amendment exceptionalism is the American tradition of strong judicial review.45 Schauer’s “The Exceptional First Amendment” can also be read in conjunction with his earlier book Free Speech: A Philosophical Investigation. In the earlier work Schauer considers various justifications for free speech and concludes by defending a thesis about the foundations of a strong free speech principle. “Freedom of speech,” he writes, “is based in large part on a distrust of the ability of government to make the necessary distinctions … an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense.” In the earlier book, he also discusses hate speech. “The problem,” he writes, “is not whether the Nazi should be allowed to speak, but whether we can establish an institution to decide which groups threaten freedom and which do not.” He goes on to say that “the very inability to perform this

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type of categorizing provides one of the strongest arguments for a principle of freedom of speech,” and for protecting the “speech rights of those who are ‘fascists,’ ‘racists’ or ‘totalitarians.’” Governments, Schauer insists, are particularly bad at censorship, and less capable of regulating speech than other conduct. Not only is the regulation of speech especially vulnerable to linguistic over-inclusiveness based on conceptual vagueness, the government also has a strong institutional self-interest in censoring speech that is critical of its policies. “The most persuasive argument for a Free Speech Principle,” Schauer insists in the earlier work, “is what may be characterized as the argument from government incompetence.”46 A sophisticated version of the argument from government incompetence captures much of the theorizing that underpins First Amendment jurisprudence. What transforms it into “exceptionalism,” however, are considerations more clearly identifiable with the United States. “Persecution for the expression of opinion,” Holmes wrote, “is perfectly logical … [but] time has upset many fighting faiths.” First Amendment exceptionalism is rooted, that is, as much in Holmes’s warnings about (1) “fighting faiths” and “persecution” as it is in concerns about (2) the fallibility of political leaders and “free trade in ideas.”47 Moreover, the United States rests, paradoxically, on a fighting faith – which begins with the Declaration of Independence and is variously described as the American civil religion or the liberal tradition in America or the American constitutional faith.48 Like many other Americans, Holmes cherished America’s distinctive “fighting faith” but he also warned of its dangers. The warning is most fully stated in Holmes’s dissenting opinion in Schwimmer, a case in which a middle-aged woman was denied citizenship because her belief in pacifism made her unwilling to swear to take up arms in defence of the Constitution. Her pacifism was the antithesis of those who advocate the violent overthrow of government. “I had not supposed hitherto,” Holmes wrote, dissenting, “that we had regretted our inability to expel” Quakers and others “because they believe more than some of us do in the teachings of the Sermon on the Mount.”49 In Schwimmer, Holmes was not primarily thinking about the “slippery slope” or the fallibility of political leaders or free trade in ideas. He was far more worried about the devastating intolerance and stultifying conformism that flowed from the American constitutional faith if left unchecked by “the overprotection of speech” or “freedom for the thought that we hate.”50

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Few Canadians explicitly argue for “the overprotection of speech,” but there are Canadians who advocate free speech exceptionalism. For them, legislation of the kind upheld in Keegstra rests on exaggerated assertions about the harm caused by hate speech. When this premise is coupled with the importance of free expression for personal autonomy and Canadian democracy, the result is freedom for the thought that we hate. Justice McLachlin’s dissenting opinion in Keegstra is a sophisticated cost-benefit version of his kind of argument. Equally noteworthy is L.W. Sumner’s important book The Hateful and the Obscene, in which he develops a consequentialist theory of rights and their limitations, applies it to Keegstra and Butler, and arrives at new policy proposals for expression. Child pornography, Sumner writes, should continue to be prohibited based on its content, but Canada’s existing hate propaganda and obscenity laws should be redrafted and “subsumed in legislation prohibiting the incitement of hate violence.” The new regulations reflect the conclusion, unlike the decisions in Keegstra and Butler, that “no law imposing a content restriction on hate speech can be justified.” The changes would entail a fundamental reorientation of Canadian law and Sumner expresses “pessimism” about their political viability. No political party, he believes, is likely to embrace legal reforms that will be seen as protecting hatemongers and pornographers, and the Supreme Court has shown no interest in revisiting its earlier decisions. Still, The Hateful and the Obscene is written by a philosopher, and Sumner ends by noting that the task of the philosopher is to map “the promised land, leaving to others the task of getting us there.”51 Clearly, Keegstra and Butler are not flawless decisions, either from the political perspective of free speech exceptionalism or by neutral standards of rigorous logical proof. What Sumner’s critique masterfully demonstrates is that Keegstra employs a weak juridical standard of harm and Butler slides into subjectivity in its use of community standards of harm and tolerance.52 It is much less clear, however, that Keegstra and Butler are untenable decisions. As Sumner acknowledges, his conclusion about the kind of regulations that are appropriate flows from “consequentialist balancing” and has no more and no less “certainty than this methodology can bestow upon it.”53 This acknowledgement is important, especially if The Hateful and the Obscene is read in conjunction with Sumner’s earlier article “Hate Propaganda and Charter Rights.” The earlier work, published four years after Keegstra, concluded that because of the corrosive effects of racism

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on its victims, there was “no convincing case against some form of criminal legislation governing hate propaganda.” Moreover, it defended the Canadian legislation “in its present form,” since it contained safeguards to minimize the impact on free expression.54 The Hateful and the Obscene and “Hate Propaganda and Charter Rights” are both works of impressive philosophical sophistication, both employ a consequentialist methodology, and yet they arrive at opposite conclusions. With respect to hate speech, they also illustrate, as Sumner initially noted, that “if the best policy is the one that strikes the right balance … then a view of either side of the issue reflects a highly speculative consequentialist calculation.”55 In Keegstra, the disagreement between Dickson and McLachlin resulted only partly from the indeterminate or speculative aspects of consequentialist calculation. Just as important are their competing views about the fundamental premises and fixed points of Canadian constitutionalism. Dickson emphasized the importance of equality and multiculturalism, and insisted that “multiculturalism cannot be preserved let alone enhanced if free rein is given to the promotion of hatred against identifiable cultural groups.”56 McLachlin believed that the most basic conceptions of Canadian society could be challenged by free expression, and regarded the issue of what undermines multiculturalism as “inherently vague and to some extent a matter of personal opinion.”57 This disagreement about constitutional fundamentals precedes and conditions their divergent consequentialist calculations under the Charter’s reasonable limits clause. Moreover, while McLachlin’s position drew significantly on First Amendment jurisprudence, Dickson’s focus was on the distinctive provisions of the Canadian Charter. He also strongly endorsed the conclusions of the Report of the Special Committee on Hate Propaganda in Canada, published in 1966. The Report rejected an unqualified right to free speech and focused instead on “the power of words to maim.” It insisted that “minority groups in Canada” were entitled to protection “against threats and vilifications directed at them solely because of their religion, colour, race, language, ethnic or national origin.” If left uncontrolled, the Report asserted, hate speech would erode “the confidence that various groups in a multicultural society must have in each other.”58 Important differences between Canadian and American constitutionalism are even more evident in Butler. One reason for the almost deafening silence of American free speech theory in Butler (unlike

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Keegstra) may be the belief that violent and degrading pornography provided an even stronger case for regulation than other forms of hate. Pornography was more commonplace, more socially accepted, and existed in a pervasive context of sex inequality.59 In Keegstra, Dickson asserted that the “public and wilful promotion of group hatred is properly understood as a practice of inequality.”60 In Butler, the judges unanimously endorsed this view. “While the American courts,” a Canadian legal scholar has argued, “treat hate speech as an unproblematic extension of the subversive advocacy cases, the Canadian Supreme Court instead situates it in the context of racial and religious discrimination.”61 Moreover, when Butler and Keegstra are taken together, it becomes apparent “that equality, and especially the aspirations to equality of groups victimized in the past, rate very high as constitutional values in Canada.”62 A strong commitment to equality for historically victimized groups is one important reason why arguments for the overprotection of speech, though prominent in the United States, are much less common in Canada. This commitment to equality also overlaps with Canadian multiculturalism and Canadian multinationality. Like several other Charter values, it belongs within a larger set of concerns that differentiate Canadian and American constitutionalism. Questions about free speech and hate propaganda are also important in contemporary Britain, as it increasingly experiments with constitutional reforms and searches for “a new constitutional settlement.”63

Con s t it u t io n a l F a it h s : Hate S peech i n Canada, t h e U n it e d S tat e s , a nd Great Bri tai n Even when discussing free speech as one of “the rights of Englishmen,” Dicey’s Law of the Constitution made no mention of Mill’s On Liberty. But almost no one else has escaped Mill’s influence. In the United States, the Abrams dissent is often read as an expression of Millian ideals and On Liberty as a justification for the American way of life.64 In contemporary England, Mill’s legacy is more complex. Lord Devlin criticized Mill’s ideas about individual freedom in The Enforcement of Morals, whereas H.L.A. Hart defended some of them in Law, Liberty and Morality, as did the Williams Report in its recommendations on Obscenity and Film Censorship. Also relevant is Mill’s remarkable study of Coleridge, in which he suggested that the romantic poet had crucial insights into “the conditions of permanent political

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society” that the rationalist philosophers of the Enlightenment had neglected. Coleridge, Mill wrote, had seen that among “the essential requisites of civil society” were (1) the existence in the constitution of the State of something that is treated as settled or permanent or “sacred,” and which is the object of allegiance or loyalty; and (2) the presence of an “active principle of cohesion,” so “that one part of the community do not consider themselves as foreigners with regard to the other part.”65 What Mill left unanswered, however, was how the essential requisites of permanent political society (or the idea of constitutional faith) and a theory of free speech fit together. That question has no easy answer. Moreover, the answer could not be modelled on abstract rationalism, which Mill rejected, but would instead have to take account of different political and constitutional cultures. Engaging the question in a comprehensive way would be a formidable undertaking. What may be possible is to isolate fragments of an answer or, more precisely, fragments of multiple answers. In this regard, Mill’s Coleridgean (or romantic) insight into the conditions of permanent political society also helps to show that even the iconic statements of Holmes on free speech fall short of being abstract universal truths and cannot easily be divorced from the aspirations and travails of America’s constitutional faith. Holmes defended free speech for unpopular causes in both Abrams and Schwimmer, yet Schwimmer highlights even more clearly than Abrams a critical and distinctive feature of American constitutionalism. That is, by overprotecting speech in situations where it might with some justification be restricted (seditious libel in wartime), First Amendment exceptionalism of the kind defended by Holmes’s “freedom for the thought that we hate” acts as a safeguard against the transformation of the American constitutional faith into a rigid and moralistic code of intolerance in benign situations (pacifism and the Sermon on the Mount). Writing during the height of McCarthyism, which attacked even the basic freedom of academic inquiry, Alexander Meiklejohn worried openly about just such a transformation and warned Americans, in a manner reminiscent of Holmes, that they had become timid, defensive, and closed-minded. He recalled the “intellectual achievement” of those who devised the Constitution and wrote the First Amendment. Americans of his own time, however, had become caretakers of a heritage and spent all their time trying to protect it from attacks, foreign and domestic. “Unlike our forefathers,” he wrote, “we

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Americans now regard the basic problems of government as having been solved for us by our ancestors.” Moreover, American freedom was becoming “slavish, timid loyalty which does not dare to ask what, with the passage of time, a changing freedom has become.” Like Holmes in Schwimmer, Meiklejohn warned that when the American constitutional faith was detached from the most stringent protection of open inquiry and free speech, it became a code of complacency mixed with fear that demanded not “the independence which creates insight but the conformity which destroys it.”66 The American constitutional faith has had dark moments. It has also been a beacon of hope. Little more than a decade after his sobering appraisal of the decline of American freedom, Meiklejohn welcomed New York Times v. Sullivan as “an occasion for dancing in the streets.”67 Decided during the civil rights movement, Justice Brennan’s opinion for the Court revisited the question of constitutional faith and identified the First Amendment with “debate on public issues” that was “uninhibited, robust and wide-open.”68 Such debate, he insisted, might well include vehement, caustic, and sharp attacks on public officials and would be constitutionally protected even if it contained erroneous statements. Moreover, by overturning a libel judgment in favour of a Chief of Police, the decision had an energizing effect in the struggle of African Americans to achieve the equal rights proclaimed in the Declaration of Independence.69 When the New York Times decision is combined with Holmes’s dissents, the moral significance of First Amendment exceptionalism becomes even more apparent, and “freedom for the thought we hate” takes on a second life as a vital principle in the search for greater equality by minorities. In the political life of America, “the constitutional right of free expression is powerful medicine” and the hope is that wide-open debate, unconstrained by hate speech laws and other restrictions, “will ultimately produce a more capable citizenry and a more perfect polity.”70 Free expression and hate speech laws can no more be divorced from questions of constitutional faith than from theories of truth or conceptions of personal autonomy. Moreover, Canada differs from the United States in matters of identity and constitutional faith. Canada is often described as a mosaic and the United States as a melting pot. Mosaic versus melting pot is a half-truth – but it is an important half-truth for understanding hate speech and the Canadian identity. In Keegstra, Chief Justice Dickson insisted that multiculturalism could not be preserved if hatred against identifiable groups was given free

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rein. What he left unsaid is that multiculturalism is one part of the Canadian mosaic and not its most challenging dimension. “Canada, with its policy of ‘multiculturalism within a bilingual framework’ and its recognition of Aboriginal rights to self-government,” Will Kymlicka has written, “is one of the few countries which has officially recognized and endorsed both polyethnicity and multinationality.”71 There is also Canadian federalism that has been described at different times as “two scorpions in the same bottle” and “eleven elephants in a maze.”72 Canada, André Siegfried suggested at the beginning of the twentieth century, was a precarious creation because it contained “impassioned rivalries” between French and English.73 Writing in the 1990s, Charles Taylor observed that “multinational societies can break up … because of a lack of (perceived) recognition of the equal worth of one group by another.”74 After the failed Meech Lake Accord Taylor also suggested that such a breakup was possible in Canada. In the Report on Hate Propaganda, Canada is described as a multiethnic society with two dominant language groups in search of a new and lasting accommodation. A hate speech law is recommended as indispensable to the future well-being of Canadian society.75 To anyone schooled in American free speech exceptionalism, the recommendations of the Report on Hate Propaganda and the Keegstra decision seem wrong-headed. Hateful and degrading material is protected under the First Amendment because American judges have been unable to find a state interest strong enough to justify its suppression. The deepest rationale of these decisions is faith in the American people, and the hope that they will use their freedom wisely. But a Canadian people and a Canadian nation are not things that Canadian judges or anyone else can take for granted. As a multinational federation that officially sanctions multiculturalism and grapples with demands for Aboriginal self-government and a Quebecois independence movement, Canada contains group identities strong enough to call into question the common sympathies required by Canadian nationhood.76 Strong group identities can bring group hatreds, and the need to control such hatreds for the sake of common citizenship.77 The great problem for Canada is fragmentation, and the recurring challenge is to create a country that both recognizes group differences and nurtures common ties and a common identity. Viewed within this framework, Keegstra and Butler are not in competition with New York Times v. Sullivan and American Booksellers, but instead contributions to the

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creation of a common Canadian citizenship and the development of a Canadian constitutional faith.78 Contemporary Britain also increasingly confronts issues of pluralism and fragmented citizenship. Dicey suggested, in 1885, that American institutions were “in their spirit … a gigantic development of the ideas which lie at the basis of the legal and political institutions of England.”79 No one could make a similar statement in the contemporary context, at least with respect to hate speech laws. In the regulation of hate speech, contemporary Britain is more like Canada. Of course there are those who believe that contemporary Britain should repeal its racial and religious hate speech laws and become like the United States. Consider, for example, the 2006 legislation that makes it an offence to “incite religious hatred” and supersedes the old law on blasphemy. In a critical study of the 2006 law, one legal scholar insists that it is difficult to draw optimistic conclusions. “The United Kingdom,” he writes, “is in fact a post-Christian secular society, but the government appears unable or unwilling to accept the ramifications of this.”80 However, there are also those who endorse the new legislation or something like it. In the 1979 Gay News case, which involved a poem alleged to be a blasphemous libel of the Christian religion, Lord Scarman wrote that he was not among those who believed that the blasphemy law served no useful purpose. His view was that there is a case for extending the law’s scope and for also protecting the religious beliefs and feelings of non-Christians. “In an increasingly plural society” such as modern Britain, it was necessary, he wrote, not only to respect differing religious beliefs but also to protect religious groups “from scurrility, vilification, ridicule and contempt.”81 What about free speech? After all, Great Britain can claim as part of its heritage some of the greatest philosophers of liberty, including Milton and Locke, Paine and Mill. Moreover, it is sometimes suggested that contemporary Britain has experienced a decline in liberty and reforms are advocated to recover what has been lost. “In a culture of liberty,” Dworkin writes in an essay on British constitutionalism, “the public shares a sense, almost as a matter of secular religion, that certain freedoms are in principle exempt from [the] ordinary process of balancing and regulation.”82 But Dworkin provides no discussion of Britain’s hate speech laws and focuses instead on the role of judges under a Bill of Rights. Would a culture of liberty, in which certain freedoms are viewed almost as “a secular religion,” allow continued

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restrictions on hate speech in Britain? Although Dworkin does not answer this question, perhaps Mill’s On Liberty does. It contains a powerful argument for free speech. It is also often read as an implicit validation of First Amendment jurisprudence.83 Nevertheless, the implications of Mill’s theory are far from self-evident, especially if a distinction is made between the force of Mill’s free speech principle and its scope. Millian free speech is based on a theory of truth and, in particular, on the relationship between free speech, human fallibility, and the search for truth. As such, it supplies a very strong principle of free speech, yet its scope is limited and hate propaganda may not be able to claim its protection.84 It is not easy to detect a family resemblance between a Millian search for truth and the speech activities of hatemongers. Mill also wrote Considerations on Representative Government, which was published two years after On Liberty and more than two decades after the essay on Coleridge. One chapter is entitled “Of Nationality, as Connected with Representative Government.” Mill observed that representative government presupposed numerous conditions, including a sense of “fellow-feeling.” But the existence of “fellow-feeling,” he said, could not be taken for granted, especially in countries composed of different nationalities. The dominant nationality might adopt oppressive policies to advantage itself. Also, in some circumstances, mutual antipathies could become stronger than “jealousy of the government” and would serve as a justification for dissolving a multinational country. Mill had no solution for the problem he identified, except to suggest that if there was “a real desire” to make a multinational state work, cultural and other differences could be protected by constitutional guarantees.85 In 1861, Great Britain did not have to worry very much about the problem identified by Mill, except with respect to Ireland. But contemporary Britain is another matter. It is becoming an increasingly pluralistic society and also contends with Scottish and Welsh nationalism in the context of a changing European Union. If contemporary Britain also requires a “new constitutional settlement” that includes a measure of “fellow-feeling” and an “active principle of cohesion,” the question of hate speech is not likely to be settled by appealing to First Amendment jurisprudence and “freedom for the thought that we hate.” Holmes’s precept resonates sublimely in a country that has a strong constitutional faith and experiences, if anything, excesses of patriotism and “fellow feeling.” It has a very different significance if

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applied in deeply pluralistic countries less certain of their constitutional faith and their common identity.

P l ur a l is m , H at e S p e e c h, and the Paradox o f   T o l e r ati on In some respects, Great Britain is the most puzzling case, especially if Lord Devlin’s ideas are assumed to provide the overarching framework for its contemporary hate speech laws. Lord Devlin’s immediate concern in The Enforcement of Morals was with the 1957 Wolfenden Report and its liberalizing reform proposals on prostitution and homosexuality, which he not only opposed but also compared to treason. A society, he said, is a “community of ideas” and has the right “to use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence.”86 Part of the reply to Devlin, by Hart and others, was to insist that his position mistakenly equated a society’s morality with conventional practices and ignored moral change and enlightened moral criticism.87 But if not Devlin’s theory, what then? Perhaps the most commonly discussed alternative is “state neutrality” or “liberal neutrality,” elaborated in one form as the “content” and “viewpoint neutrality” that constitutes part of American free speech theory. “American constitutional law,” it has been suggested in a study of hate speech in Britain and the United States, “is concerned to protect public discourse as a sphere that remains open to all communities, to all potential visions of the good and decent. It is for this reason that the American First Amendment holds that in public discourse ‘one man’s vulgarity is another’s lyric.’” Its author also suggests that contemporary British hate speech laws are exemplifications, at least in part, of Lord Devlin’s problematic theory of the enforcement of morality.88 But there are ways of justifying hate speech laws that have nothing to do with Lord Devlin’s theory and are just as compelling as First Amendment jurisprudence and the theory of state neutrality. “What is shocking and wrong [about Devlin’s theory],” a distinguished jurist wrote, “is not his idea that the community’s morality counts, but his idea of what counts as the community’s morality.”89 Morality matters and First Amendment jurisprudence also enforces a conception of morality, although it is certainly not Devlin’s. Moreover, the US Bill of Rights is not neutral in the choice of the rights it protects, and the US Supreme Court is not neutral in the privileged position it accords

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to free speech against other values such as equality or privacy or human dignity. Hate speech laws are no more, and no less, puzzling than First Amendment jurisprudence. One way to clear up part of the puzzle, on both sides, is by considering what Karl Popper called “the paradox of tolerance,” as well as Schauer’s analysis of it. Popper believed that unlimited tolerance would lead to the disappearance of tolerance. “If we extend unlimited tolerance even to those who are intolerant,” he wrote, “the tolerant will be destroyed, and tolerance with them.” Popper’s solution to the “paradox” is that “we should … claim, in the name of tolerance, the right not to tolerate the intolerant.”90 In “Free Speech and the Paradox of Tolerance,” Schauer responds to Popper and provides some important insights. Schauer begins by noting that the “paradox of tolerance” has a significance that is more than just hypothetical. It was invoked by those who opposed (unsuccessfully) the neo-Nazi march in Skokie, Illinois. And it underpins the limitations on speech specified in Article 17 of the European Convention, which stipulates in part that no “State, group or person [has] any right to engage in any activity … aimed at the destruction of any of the rights and freedoms set forth” in the Convention.91 According to Schauer, the “paradox of tolerance” arises because the principle of free speech is ambiguous. There are several different but related concepts of free speech and it is impossible to apply the principle of free speech without knowing the deeper purposes. One purpose of free speech is exemplified by the argument from truth as developed by Mill and others. Schauer contends that the argument from truth, when analyzed, consistently justifies the suppression of the speech of neo-Nazis. “The argument from truth is parasitic upon an epistemic process. Speech that is inconsistent with the process cannot with consistency be allowed protection by the legal rights that are derived from the process.” He applies the same analysis to the other purposes of free speech, such as the argument from democracy. His first conclusion is that identification of the purpose of free speech leads to a more precise or limited legal definition of the right to free speech that excludes neo-Nazis and dissolves the “paradox.” But Schauer also insists that there is a concept of free speech that denies any particular value to speech. It focuses on the slippery slope, on the human disinclination to allow dissent, and on a general distrust of government. On this view, which is the view of First Amendment jurisprudence and the basis of Schauer’s second conclusion, since no one should have power to

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decide which groups are (for example) totalitarians and which are not, the resolution of the “paradox” is provided by the consistent overprotection of all speech.92 If the choice were between Lord Devlin’s ideas and First Amendment jurisprudence, it would not be a difficult choice to make, especially in contemporary liberal democracies. Lord Devlin did not just undervalue liberty or free speech – he also attached too little importance to equality and pluralism. But a single “right” answer becomes harder to discern if it is a choice between First Amendment jurisprudence and Chief Justice Dickson’s opinion in Keesgtra or Lord Scarman’s opinion in Gay News. And it would also have to take account of the different kinds of pluralism, as well as differences in constitutional faith. In some cases, to ask for a single right answer may simply be to ask the wrong question.

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6 Mosaic and Melting Pot The Dialectic of Pluralism and Constitutional Faith in Canada and the United States T h e F ac e s o f P l urali s m Statements that contrast the political and constitutional cultures of Canada and the United States are not difficult to find, and among such statements the contrast between the mosaic and the melting pot is the most familiar, the most striking, and the most intriguing. One of the earliest dramatic portrayals of the melting pot is Israel Zangwill’s play, first performed in Washington, and lionized by President Theodore Roosevelt.1 “America,” wrote Zangwill, “is God’s crucible, the great Melting-Pot where all the races of Europe are melting and reforming.”2 But the melting-pot idea is much older than Zangwill’s play; it is almost as old as the Republic itself. Writing in 1782, Crevecoeur described America as a country where immigrants leave behind their ancient prejudices and are “melted into a new race of men.” “The American,” he said, “is a new man, who acts upon new principles.”3 As for the mosaic, it is less ancient than the melting pot and is usually traced only to the 1920s; by 1965, however, John Porter could call it Canada’s most cherished value.4 In 1971, Pierre Trudeau insisted that “the mosaic pattern … makes Canada a very special place.” Canada, he explained, “is a multicultural society; it offers to every Canadian the opportunity to fulfil his own cultural instincts and to share those from other sources.”5 In earlier writings, Trudeau described Canada as “better than the American melting-pot” and as belonging to “tomorrow’s world.”6 The mosaic and melting pot also have their critics. One of the bestknown criticisms of the mosaic pattern is that, far from treating all ethnic groups as equal, some groups are denied basic opportunities

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and accorded second-class status.7 Another is that the mosaic rests on a sinister moral relativism incapable of distinguishing right from wrong, and productive of mosaic madness.8 And still another, that the mosaic legitimates ethnic solitudes, diminishes human dignity, and severs the ties of amity that should unite Canadians.9 All of these criticisms accept that Canada is a mosaic, but regard the mosaic pattern as dysfunctional or even pernicious. As for the melting pot, the core criticism is that the American people are not one and do not form a unity. Rather, “they are a mosaic of peoples, of different bloods and different origins, engaged in rather different economic fields, and varied in background and outlook.”10 What adds depth to this criticism is the charge that the melting-pot idea not only lacks moral neutrality, but also privileges a particular way of life, one suited to the ruling classes and inhospitable to all the rest.11 But if the United States is also to be regarded as a mosaic of peoples and the meltingpot idea is to be discarded, what then differentiates the US from Canada? And why should it not suffer, too, from mosaic madness and the kindred maladies that challenge Canada’s unity and periodically disrupt Canada’s destiny? These questions do not have simple answers. Moreover, it is possible to acknowledge that Canada and the United States are both ethnically diverse while still recognizing other crucial differences between them – differences that re-introduce the very distinction between the mosaic and the melting pot. One such difference is that Canada is both a multinational and a territorial federation, whereas the United States has never been a federation of peoples.12 Another difference is that American pluralism rests on a distinctive, widely accepted, and easily recognizable constitutional faith, which defines what it means to be an American in normal times, and serves as a touchstone even in times of great crisis. “There is an American spirit,” wrote Frederick Jackson Turner. “There are American ideals. We are members of one body, though it is a varied body.”13 If Canadian federalism differs from the American variant, and if Americans have a constitutional faith that distinguishes them from Canadians, then Canada and the United States are unlikely to be a mosaic of peoples in the same way. Much the same idea can be expressed by saying that Canadian pluralism differs from the American variety. For although both Canada and the United States can be described as federal and multicultural societies, they are not federal and multicultural in the same way and the differences between them define

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two radically different brands of pluralism. The contrast between the mosaic and the melting pot turns out to be meaningful after all. It reveals striking dissimilarities in constitutional faith, draws attention to distinctive challenges faced by Canadians and Americans, and highlights the need to take seriously differences in political and constitutional culture.

T h e D ia l e c t ic o f Nati onhood: C a n a da a n d t h e U ni ted S tates Multiculturalism can be part either of a mosaic (Canada) or of a melting pot (United States). To understand how this can be so, it is necessary to begin with the nation rather than the individual, and to distinguish the different kinds of nations. Some theories of multiculturalism begin with the individual, postulate individual autonomy as the starting point, and regard culture – including the ability to choose between cultures – as essential for the individual’s identity as a healthy and autonomous agent. Because Canada and the United States are both liberal societies and affirm liberal conceptions of human rights, liberal or individualistic theories of multiculturalism regard such ideas as the mosaic and the melting pot as unimportant. But individuals also live within nations. Once Canada and the United States are distinguished as nations, the differences between the mosaic and the melting pot become clearer, as do their divergent implications for multiculturalism. The United States is the first new nation; it was born of a revolution for liberty that proclaimed allegiance to the inalienable rights of man.14 Canada is different, as Christopher Dunkin emphasized in the Confederation debates. The US constitution, Dunkin said, was adopted after a “successful war of independence,” in which the men who framed it had gone “shoulder to shoulder” through a great trial, and “their communities … had been united as one man.” Moreover, Americans had tried “the system of mere confederation” and were ready “to build up a great nationality that should endure in the future.” In contrast, Canadian Confederation was not preceded by a common struggle, but by a struggle that “pitted our public men one against another, and … even our faiths and races against each other.” As a result, there was, said Dunkin, no common nationality to which Confederation could appeal.15 If the United States was the first new nation, Canada would have to be either a very different nation or no nation at all.

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In the debates of 1865, Dunkin predicted that Confederation would not endure and that Canada lacked a destiny. He also insisted that those who supported Confederation were devoid of greatness. Once again, the contrast was with the United States. “The framers of the American constitution,” he said, “were great men … [and] their work was a great work.” Part of their greatness was their discovery of federalism and their creation of “a true federation.” But the framers of Confederation, Dunkin insisted, were unable to grasp that “a Legislative union is one thing; a Federal union is another.” Their creation was neither a legislative union, nor a federal union, but merely combined the disadvantages of both. American Senators were picked by their states, had real powers, and functioned as a federal check. The Canadian Upper House, Dunkin said, could perform no such function because its members were appointed by the general government, rather than the provinces. As for lieutenant-governors, Dunkin believed that their interference in local affairs would merely fuel conflicts of authority between the provinces and the central government. Confederation also allocated the largest powers to the general government; yet such a distribution of powers would revive “old jealousies and hostility,” and awaken the “war of races.” Confederation, Dunkin said, contained much to quarrel over; with quarrels come collisions; and soon Confederation “is at an end.”16 Dunkin had few solutions for the difficulties that troubled him, other than his belief that “what is wanted … is an effective federalization of the [British] Empire as a whole, not a subordinate federation here and there.”17 But even if such a solution had been available to Canadians in 1867, which it was not, there was still the question of federalism itself. What Dunkin failed to grasp was that federal governments are not all of a kind; they can and do differ since they respond to different kinds of societies. Moreover, Canadians did not have the same reasons for adopting federalism in 1867 as Americans had in 1787, nor did they have the same aspirations for it. Dunkin understood that Canada and the United States were different, but he did not fully grasp either the extent of the differences or their deeper significance. He chose to emphasize that Americans, having fought a war of independence, were ready to build a new nationality; whereas Canadian Confederation, coming after a war of races, “was very different indeed.” The contrast contains an important truth; but it was a strange truth to emphasize in 1865, when the American Civil War raged. The American Civil War (with its enormous loss of life) was certainly not any less significant than what Lord Durham had

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called the war of races. Both wars were deeply implicated in distinctive conceptions of nationhood and, when taken together, they revealed truths about the United States and Canada that Dunkin and others overlooked. Unlike Dunkin, Macdonald had far more to say about the American Civil War and its significance for Canadian nationhood. In the Confederation debates, he described the US Constitution as “one of the most skilful works which human intelligence ever created” but instantly added that it was “not the work of Omniscience.” It “commenced … at the wrong end” because it declared that “each state was a sovereignty in itself.”18 By contrast, the Canadian constitution would confer all the great powers of legislation, as well as the residuary power, on the central government, thereby avoiding the fatal defect of the American model. For Macdonald, the American Civil War demonstrated that the US Constitution was not to be emulated so much as improved upon; and the improvement consisted of an attempt to reduce the provinces to little more than administrative units of the central government. Macdonald soon realized, however, that the provinces would not accept the subordinate role that he wished to assign to them. “It is difficult to make the local Legislatures understand,” he complained in the years after Confederation, “that their powers are not so great as they were before the Union.”19 Nor was Macdonald any more successful in explaining the causes of the American Civil War. The issue that most divided Americans in the years before the Civil War was not state sovereignty but the meaning of liberty. More than anyone else, Abraham Lincoln had the deepest insights into the Civil War and its meaning for the American constitutional faith. He is known to history as the great emancipator; yet, as president, he emphasized that “if [he] could save the Union without freeing any slave [he] would do it.” As long as he could remember, he regarded slavery as a horrendous moral evil; “if slavery is not wrong,” he insisted, “then nothing is.” Yet he was painfully aware that Northerners and Southerners “read the same Bible,” “pray[ed] to the same God,” and worshipped the same Constitution. He was no enemy of federalism or states’ rights. He acknowledged that the framers had made crucial concessions to slavery; but their concessions, he insisted, did not justify the expansion of slavery into new states. At the beginning of the Civil War, he said that there was only one “substantial issue.” “One section of our country believes slavery is right, and ought to be

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extended, while the other believes that it is wrong and ought not to be extended.” But as the Civil War deepened, so did his understanding of it. Eventually, he realized that the most divisive issue was the meaning of liberty. “The American people,” he said, “are much in want of … a good definition of liberty.” “All declare for liberty,” but they do not “mean the same thing” by it.20 Liberty is the core of the American constitutional faith, yet Americans have never fully agreed about its meaning or about how it is best realized. In 1787, the American constitutional experiment was mired in a debate about liberty, and the attempt to create a “more perfect union” almost failed. The key problem for post-revolutionary America had been classically defined by Montesquieu; he believed that large countries (empires) turn into despotisms and destroy republican liberty.21 Had Americans thrown off the tyranny of George III merely to replace it by a tyranny of their own creation? So long as this question remained unanswered, most Americans could see no alternative to the ineffectual Articles of Confederation other than Alexander Hamilton’s unacceptable proposals for consolidated government. Eventually, James Madison provided a solution. To secure liberty, it was necessary to create a compound republic, whose constitution was both national and (con)federal in character. By compounding the diverse economic interests of a large territory with a federal system of semi-sovereign political units, Americans could obtain – so Madison believed – the commercial and military advantages of energetic union, while guaranteeing republican liberty and the states.22 The Constitution that Madison helped to create did not solve all the problems of freedom. Not only did its framers leave slavery intact, their attempt to bury the slavery problem within the intricacies of federalism also proved to be politically and philosophically untenable.23 For the idea of slavery found a strong philosophical ally in classical republican theory and eventually burst through the political framework of Madisonian federalism. Classical republicanism equates freedom with independence, regards tyranny and poverty as the great enemies of freedom, and holds that those who lack independence are unfit for freedom. In America, such ideas made it easier to justify the enslavement of Black people; they also made it possible to equate the emancipation of Black people with the destruction of freedom.24 The cry of many Southerners was that they (the upholders of slavery) were the true defenders of freedom and the republican heritage. Lincoln replied famously that the permanent acceptance of slavery was

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incompatible with the ideal of human equality enshrined in the Declaration of Independence. He also insisted that the slavery argument, once admitted, could not be confined to Black people but would engulf the American people in an endless series of invidious discriminations and finally destroy the American experiment in freedom. The day might even come, he warned, when he and others would prefer immigrating to “some country where they make no pretense to loving liberty” and where “despotism can be taken pure.” What he prayed for was “a new birth of freedom,” so that a nation “conceived in liberty” would not perish from the earth.25 In the Confederation debates, Dunkin and Macdonald demonstrated little understanding of the American constitutional faith. Nor were the lessons they drew from America’s constitutional experiment any more satisfactory. Dunkin’s plea for the creation of an Imperial Federation would not have solved the internal problems of Canada that he identified and might even have exacerbated them.26 As for Macdonald, his preference was for a legislative union and a sovereign parliament similar to that of the United Kingdom.27 This preference was bolstered by his understanding of the American Civil War and accorded with his Tory conception of the nation as an entity that transcends all lesser divisions and loyalties.28 To be sure, he was compelled to admit that a legislative union was “impracticable,” not only because Lower Canada refused to accept it, but also because the Maritimes had developed strong local identities and wished to retain them. Even so, he said, Canada would still differ from the United States because only minimal concessions had been made to federalism. The emergence of a strong provincial rights movement after 1867, with its articulation of the compact theory of Confederation, eventually shattered Macdonald’s Tory vision of Canada; it also made federalism, which he feared, the most dynamic feature of the Canadian polity. If Canada was to endure after Confederation and if its destiny was to be different from that of the United States, its aspirations as a nation could not lie with any scheme of Imperial Federation or in Macdonald’s failed attempt to banish states’ rights from the constitutional landscape.29 Moreover, the failure to achieve Macdonald’s centralism did not necessarily confirm Dunkin’s darkest predictions or those of other critics of Confederation. After 1867, conflicts of jurisdictions occurred, clashes between French and English continued; yet Confederation endured. What Dunkin perceptively but vaguely understood was the

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importance of constitutional faith for nationhood. This insight led him to contrast the United States and Canada with respect to their founding moments, and to forecast that a future built on a war of independence would differ from one premised on a war of races. But Dunkin’s forecast rested on half-truths. In 1787, the constitutional faith of Americans did enable them to build a great nation. The United States, as Lincoln said even during the Civil War, was a nation “conceived in liberty.” Canada was different indeed. But the difference did not lie in the impossibility of a Canadian nation or in an eternally recurring war of races. As George Cartier emphasized, such views failed to grasp that Confederation envisioned a new kind of nation, one that differed from the American model and that also moved beyond the war of races by rejecting ethnic unification. Madison defended American federalism on the ground that it protected republican liberty. Cartier regarded Canadian federalism as a device that enabled different races and ethnicities to live together under a common political nationality. In the debates of 1865, no one knew if Canada would flourish or even survive. For it to do so, however, it would have to practise a constitutional ethic unlike what America had produced in 1776 or 1787, and build on Cartier’s aspirations about a distinctive Canadian constitutional faith.

Mu lt ic u lt u r a l is m : In di vi dual Freedom a n d   M u t ua l R ecogni ti on If 1787 is compared with 1867, and the American Civil War with Lord Durham’s war of races, differences between the United States and Canada become evident. But can the differences be described in terms of a mosaic and a melting pot? And what happens if, instead of looking backwards, one looks forward to the phenomenon of multiculturalism that has become a prominent feature of both Canada and the United States? One response would be to say that both Canada and the United States, whatever they once were, are now a mosaic of peoples, and the differences between the two countries are increasingly negligible. But such a response is unsatisfactory. Canada is (among other things) a multinational polity, whereas the United States is a territorial federation. This difference is foundational and affects almost every other aspect of these two countries. A multinational polity and a territorial federation are both pluralistic societies, but the character of their pluralism is different. Moreover,

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multiculturalism does not have the same significance in the United States as it has in Canada, nor does it create the same challenges. In the United States, the deepest questions raised by multiculturalism are questions about individual liberty. In Canada, they have to do with mutual recognition.30 These differences reflect the fact that Canada and the United States are different kinds of nations and rest on different constitutional faiths. However, these differences between Canada and the United States as different kinds of multicultural polities are often treated as secondary, or neglected altogether while attention is focused on other issues. In both Canada and the United States, the aspect of multiculturalism that receives the most attention is its (alleged) connection with relativism, and the consequences that flow from it. What the critics frequently contend is that multiculturalism rests on a corrosive moral relativism that makes public dialogue impossible. “To the extent citizens begin to retribalize into ethnic or ‘other-fixed identity groups,’” writes Jean Bethke Elshtain, “democracy falters. Any possibility for human ­dialogue … vanishes as so much froth.”31 Elshtain is concerned about contemporary America. A Canadian parallel is Reginald Bibby’s Mosaic Madness. Canada, writes Bibby, “is leading the world in pluralism and relativism … [and] the news is not that good.” Many Canadians, he suggests, have come to accept cultural relativism as a given and, for them, “truth has been replaced by personal viewpoint.” Like Elshtain, Bibby’s concern is that multicultural relativism “blinds [Canadians to] the merits of ideas and behaviour” and makes dialogue impossible. Moreover, Bibby acknowledges that his critique of Canadian multiculturalism owes a considerable debt to American authors, in particular to Robert Bellah’s Habits of the Heart and Allan Bloom’s The Closing of the American Mind. “Inadvertently, these Americans,” he writes, “have provided critiques more appropriate to Canada than to the United States.”32 Two limitations run through Bibby’s critique of Canadian multiculturalism: the identification of relativism with pluralism, and the failure to distinguish adequately Canadian pluralism from the American variety. Although relativism and pluralism are frequently assimilated, the difference between them is plain enough. “‘I prefer coffee, you prefer champagne. We have different tastes. There is no more to be said.’ That is relativism.” But, as Isaiah Berlin goes on to explain, pluralism is different; it holds that “there are many different ends that men [and other people] may seek and still be fully rational

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… capable of understanding each other and sympathising and deriving light from each other.” In Berlin’s analysis, relativism differs from pluralism and pluralism can apply to individuals or to societies or to civilizations; and it holds, contrary to Platonic monism, that there is no single scheme of values “true for all men, everywhere, at all times.” Not only may values “clash within the breast of a single individual,” and within a single society; but there is also a plurality of civilizations, each with its own pattern, and “not combinable in any final synthesis.”33 What Bibby does not take seriously enough is that relativism differs from pluralism, that there are different kinds of pluralism, that Canadian pluralism differs from American pluralism, and that the differences between them have significant implications for multiculturalism. One way of clarifying those implications is by shifting the focus from relativism to fragmentation. Next to relativism, one of the deepest fears of American critics of multiculturalism is that public acceptance of it will make the United States more like Canada. In particular, their concern is that multiculturalism and other kinds of group rights will erode national unity and spawn separatist movements. In The Disuniting of America, Arthur Schlesinger contends that “self-styled ‘multiculturalists’ are very often ethnocentric separatists.”34 In Ethnic Dilemmas, Nathan Glazer warns of the dangers of group rights; he also contrasts Canada and the United States. Glazer acknowledges that both countries are multiethnic states, but insists that the similarity ends there. Historically, the policy of the United States has been to regard group identities as temporary and to oppose the conferral of group rights. The American ideal, Glazer writes, has been to see these groups as “integrating into, eventually assimilating into, a common society.” However, in Canada group membership is so central and permanent that it is unrealistic to envision “a common citizenship.” Glazer takes a bleak view of the Canadian model; he urges Americans to shun cultural pluralism on the ground that it would reduce their country to a confederation of unattached and antagonistic groups. If assimilation is rejected for cultural pluralism, he warns, “we have a sure recipe for conflict.”35 Glazer equates pluralism with fragmentation. Moreover, his defence of assimilation or what he calls the “American ideal” is based on the belief that “difference, alas, is always liable to become a source of conflict.”36 By eliminating difference, assimilation also eliminates conflict. But Glazer’s argument and his understanding of the

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“American ideal” become absurd if taken literally or judged by the standards of American constitutionalism. No one familiar with Madison’s discussion of the extended republic in Federalist No. 10 or his defence of checks and balances in No. 51 can really suppose that the American system is designed to eliminate conflict or promote uniformity. If anything, it seeks to institutionalize and structure conflict. Presumably, Glazer does not object to all conflicts and all differences. Since much of his discussion deals with ethnic differences, his warnings might be taken to apply there only. But even so, difficulties remain. Glazer lumps together different demands made by different kinds of ethnic groups, and wrongly supposes that all demands lead to fragmentation. Many multicultural groups are not disguised separatists; on the contrary, they want recognition of their special characteristics so that they can participate more fully within the mainstream of society. As Will Kymlicka emphasizes, “the common rights of citizenship, originally defined by and for white, able-bodied Christian men, cannot accommodate the special needs of these groups. Instead, a fully integrative account of citizenship must take these differences into account.”37 Not only does Glazer misunderstand multiculturalism, but his (crude) defence of assimilation is difficult to reconcile with the American ideal. Glazer rightly emphasizes that the American model presupposes membership in a common society. What he fails to note, however, is that the ideal of liberty forms the core of the American constitutional faith. If Americans value liberty, they cannot be crude assimilationists, because the affirmation of liberty is inseparable from social pluralism and, under certain conditions, may even require cultural pluralism. Mill’s famous defence of individual sovereignty in On Liberty, which Americans praise, is not just a critique of political centralization and intrusive government. It is also a justification of social pluralism: the right of individuals to associate freely and to engage in experiments in living and develop different plans of life.38 In Multicultural Citizenship, Will Kymlicka details the ways cultural pluralism sustains individual liberty in a multiethnic state. Liberals committed to individual autonomy, he suggests, should endorse multicultural group rights for minorities, because individual choices are made within a cultural context. When immigrants are forcibly assimilated, they experience significant harms. They are denied the ability to form their own life plans or even to evaluate and revise the beliefs that make their lives meaningful. Moreover, forcible assimilation

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denies equality by privileging the dominant culture and by compelling members of the minority culture to adopt it.39 Justice for minorities requires, Kymlicka contends, recognition of the cultural preconditions of freedom so that both individual autonomy and social equality can be vindicated. As a country whose constitutional faith enshrines individual freedom, the United States has little reason to glorify crude assimilation or to neglect the multicultural preconditions of individual autonomy. Within Canadian constitutionalism, however, a liberal theory of multiculturalism occupies a more limited space – even though Canadian multiculturalism became law under a Liberal government and received its strongest endorsement from a prime minister imbued with liberal principles. When Pierre Trudeau introduced official multiculturalism in the House of Commons in 1971, he portrayed Canada as a country with “two official languages [and] no official culture,” a country in which no ethnic group took “precedence over any other.”40 Official multiculturalism was described as “the most suitable means of assuring the cultural freedom of Canadians” on the ground that it would help to break down discriminatory attitudes and would help to guarantee fair play for all. Ethnic groups, Trudeau said, should be “encouraged to share their cultural expression and values with other Canadians and so contribute to a richer life for us all.” Outside the House of Commons, Trudeau insisted that Canada was “a land of people with many differences … but a single desire to live in harmony.”41 But neither Trudeau’s liberal multiculturalism, nor the larger constitutional vision that envelops it, had the results he desired. Canada has not become more harmonious, national unity is not more firmly established, and the Canadian mosaic is not easily accommodated within the boundaries established by Trudeau’s constitutional vision or his liberal theory of multiculturalism. The problem with Trudeau’s constitutional vision is not simply that it attaches too much importance to multiculturalism and too little importance to other aspects of Canadian nationhood.42 The problem goes deeper. If official multiculturalism is placed too firmly within a liberal framework, Canada itself becomes a more difficult country to understand because certain kinds of questions and certain values are obscured or downgraded. The starkest example is Canadian Aboriginals. In the 1969 Statement on Indian Policy, the Liberal government insisted that “different status” for Aboriginals was a “blind alley.” Instead, it recommended full membership in Canada’s

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open (multicultural) society where there was “room for the development of people who preserve their different cultures and take pride in their diversity.”43 Aboriginal spokespeople rejected the government’s position and appealed to an even more famous Canadian idea. “We like the idea of a … great mosaic,” Harold Cardinal wrote, and went on: “we are impatient for the day when other Canadians will accord the Indian the recognition implied in this vision of Canada.”44 Underlying this view of Canada is a different vision of nationhood than the one endorsed by liberal multiculturalism, and an emphasis on the importance of genuine mutual recognition between Aboriginals and other Canadians. Unlike the United States, Canada is a multinational country as well as a multicultural society, and Canadian Aboriginals, like the French Canadian people of Quebec, regard themselves as part of Canadian multinationality and not part of Canadian multiculturalism. As a result, the Canadian mosaic (which includes multinationality and multiculturalism) is a more fragile country than the American melting pot (with its unofficial multiculturalism), and the Canadian constitutional faith is more elusive. “Multinational societies can break up, in large part because of a lack of (perceived) recognition of one group by another.”45 So wrote Charles Taylor after the failure of the Meech Lake Accord. One of the ironies of Canadian constitutional history is that the Accord failed partly because Canadian Aboriginals opposed it, on the ground that although it recognized Quebec’s distinctiveness, it provided no similar recognition of their status within the Canadian mosaic. Writing shortly after the failure of the Accord, Taylor’s fear was that Canada was undergoing a process of fragmentation. Subsequent events have not diminished the importance of his concerns about the future of Canada. Taylor’s larger objective was to draw attention to “The Politics of Recognition” and to emphasize that nationalist movements, some forms of feminism, and the politics of multiculturalism “turn on the need, sometimes the demand, for recognition.”46 The “politics of recognition” is also the subject of The Malaise of Modernity and Reconciling the Solitudes. The connecting theme is Taylor’s “dialogic” conception of the self, which leads him to explore modern concerns with the ethic of authenticity and the importance of equal recognition. What Taylor rejects is a monological or self-choosing conception of the self. Such a conception of the self is not only incoherent but also ultimately self-defeating, because it leads to a disenchanted modernity

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and to societies increasingly focused on technology, efficiency, and instrumental reason. With disenchanted modernity comes fragmentation, weakened bonds of sympathy, and a decline of common purposes. Faced with the malaise of modernity, Taylor suggests that Americans increasingly turn to courts, assert their rights in judicial battles, and thereby unwittingly exacerbate their public disenchantment. Canada is different and with that difference comes greater opportunities and likewise greater dangers. Canada has stronger traditions of collective action, more cohesive group identities, and a more decentralized federalism, which can promote citizen engagement. The significant danger is that Canadians as democratic citizens will fail to create a common understanding that can hold their deeply pluralistic country together. And this failure of mutual recognition, Taylor suggests, is “a failure to understand and accept the real nature of Canadian diversity.”47 In a country like Canada, with the constitutional structure of a mosaic rather than a melting pot, a liberal theory of multiculturalism cannot displace the politics of mutual recognition.48

M o sa ic a n d M e lt in g Pot: Femi ni sm, Mu ltic u lt u r a l is m , a n d C ons ti tuti onal Fai th Even as multicultural polities, Canada and the United States face different constitutional destinies. The main challenge for the United States is to respond to multiculturalism in a way that both affirms its constitutional faith in liberty and accepts benign cultural particularisms. This challenge is, at times, more difficult to meet than it might at first appear. Many white American feminists value freedom but reject multiculturalism on the ground that “most cultures have as one of their principal aims the control of women by men.”49 For them, the acceptance of multicultural group rights is not part of the solution but part of the problem, since it perpetuates patriarchy and limits the freedom of women. Canadian feminists also raise questions about the patriarchal character of many multicultural groups and sometimes point to the same concerns about equality and individual freedom as their American counterparts. But, in Canada, there is the additional complicating factor of multinationality, which divides women and can also divide their country. In the United States, the questions raised by feminists, especially white middle-class feminists, bring into play the American faith in freedom that constitutionalizes key components of the melting pot and has implications for multiculturalism. In

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Canada, feminist concerns become mired in the complexities of a multinational mosaic with territorial dimensions and exacerbate concerns about a constitutional faith that can keep the mosaic from flying apart. For Americans, the Declaration of Independence, the Constitution, and the Gettysburg Address are landmarks of their constitutional faith. Each of these documents celebrates human freedom, but not one of them deals specifically with the freedom of women. That is one reason why American feminists – even liberal feminists – proceed cautiously when confronted by the rhetoric of liberty, whether it is multicultural freedom or traditional liberal freedom. One of their basic concerns is that the freedom of women will once again be sacrificed to the freedom (power) of men. Susan Moller Okin raises a concern of this kind in Is Multiculturalism Bad for Women? She notes that assimilation is “now often considered oppressive” and a common demand is to “devise new policies that are more responsive to persistent cultural differences.” She also knows that some defenders of cultural group rights appeal to liberal principles and rest their case on liberal conceptions of autonomy. Nevertheless, she believes that “feminists … should remain skeptical.” Too often cultural minorities are treated as if they are all of a kind, and just as often their biases against women are overlooked. Moreover, when attempts are made to correct these biases against women, “advocates of group rights pay little or no attention to the private realm” and thereby ignore the most subtle forms of gender exploitation. In such circumstances, “group rights are … in many cases actually antifeminist. They substantially limit the capacities of women and girls of that culture to live with human dignity equal to that of men and boys, and to live as freely chosen lives as they can.”50 These concerns raise important questions but they are not necessarily fatal objections to a liberal theory of minority rights or a liberal theory of multicultural citizenship. Part of Okin’s essay consists of a critique of Will Kymlicka, whom she describes as the foremost contemporary defender of cultural group rights. “His arguments for multiculturalism,” she complains, “fail to register what he actually acknowledges elsewhere: that the subordination of women is often informal and private, and that virtually no culture in the world today … could pass his ‘no sex discrimination’ test if it were applied in the private sphere.”51 This criticism neglects, however, a key part of his argument. As Kymlicka emphasizes in his reply to Okin, “liberals can

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accept external protections which promote justice between groups, but must reject internal restrictions which reduce freedom within groups.” The existence of domestic oppression requires a constructive elaboration of the kind of internal restrictions opposed by liberal defenders of minority rights, rather than an abandonment of such rights. Moreover, multiculturalism and feminism have more in common than is often allowed. Both reject the traditional liberal (or atomistic) conception of individual rights. Both oppose crude notions of equality as sameness. They are, Kymlicka insists, “allies engaged in related struggles for a more inclusive conception of justice.”52 Okin accepts these replies and modifies her critique. “What we need to strive for,” she concludes, “is a form of multiculturalism that gives issues of gender and intragroup inequality their due … [by treating] all persons as each other’s moral equals.”53 That an American liberal feminist (Okin) and a Canadian liberal multiculturalist (Kymlicka) are able to arrive at common ground is reassuring for those who endorse liberal values. But agreement among liberals will not necessarily satisfy the critics of liberalism or settle difficult questions about the meaning of the different constitutional faiths that underpin Canadian and American nationhood. Part of the critical response to both Okin and Kymlicka has been that they neglect the deeper meaning of cultural difference and dilute its significance by fitting it within a liberal framework. A criticism of this kind is developed, for example, by Bhikhu Parekh in “A Varied Moral World.” Parekh argues that both Kymlicka and Okin “fail to appreciate the full force of the challenge of multiculturalism.” He writes: “Like Kymlicka she [Okin] takes liberalism as self-evidently true, asks how it can accommodate minority cultures, and more or less reduces multiculturalism to a discussion of group rights.” When such a stance is adopted, the real challenge of multiculturalism is overlooked – namely, its rejection of liberal hegemony and self-­ righteousness. “From a multicultural perspective,” Parekh goes on to say, “the liberal view of life is culturally specific and neither selfevidently true nor the only rational or true way to organize human life.” What liberals too often neglect is that “no culture exhausts the full range of human possibilities.” If this is so then, according to Parekh, the way for liberals to respect the multicultural perspective is by acknowledging the “limitations of the great liberal values” and by accepting a framework in which “different cultures … cooperatively explore their differences.”54

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Although Parekh’s critique is directed against liberalism and liberal feminism, the issues he raises can also be used to bring into sharper focus difficult questions about the American constitutional faith and its complex relationship to the American melting pot. The United States is not a melting pot pure and simple; it is a melting pot built on a complex constitutional faith in freedom.55 No American was more aware of this fact that Justice Frankfurter. He believed that to become an American one had to shed old loyalties, take on the loyalties of an American citizen, and become attached to the principles of the Constitution.56 Expanding on this idea, Robert Bellah describes the existence of an American civil religion that includes the Declaration of Independence and the Gettysburg Address with their commitment to basic human rights. But the American civil religion, Bellah insists, also has a darker side and has at times “suffered various deformations and demonic distortions.”57 Senator Joe McCarthy’s campaign against communist sympathizers and other dissenters is as much a part of the American civil religion as Lincoln’s struggle to free the slaves. At its best, the American civil religion has exercised long-term pressure for a humane solution to the “Negro problem”; at its worst, it has demanded rigid conformity to a restrictive way of life.58 These complexities of the melting pot are partly highlighted by Parekh’s critique of what he calls liberal hegemony and liberal self-righteousness and they are well understood by at least some American feminists. For example in their fight against sexist pornography, which they associate with male power over women, American radical feminists such as Catharine MacKinnon reject the free speech provision of the US Constitution and argue for a generous interpretation of the Fourteenth Amendment, the very provision that secured equal citizenship for the slaves.59 America is a special kind of melting pot, because American freedom and the American constitutional faith can be used to support the rights of women and other minorities and also to suppress them. The Canadian constitutional faith is different, in part because Canadian pluralism is unlike the American variety. In fact, the dissimilarities are so great that the existence and even the possibility of a Canadian constitutional faith can be questioned. In this regard, those who put their faith in Canada’s mosaic pattern must somehow respond to Gad Horowitz’s sobering critique. “A functioning democracy,” he suggests, “requires a well developed sense of national unity, a feeling on the part of ordinary people that they are part of that national community.” But in Canada, this well-developed sense of national

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unity is absent because the strongest identifications are with regions and ethnic groups. What results from the mosaic pattern, Horowitz goes on to say, is stagnation in politics and inequality of opportunity in economic and social life. Horowitz knows that some mosaic celebrators praise Canada for being a non-nationalistic nation, a nation that is not a nation, a land of many cultures. Their desire is to be left alone, and not to be pressed into any molds. “When this way of talking is not fake,” Horowitz responds, “it is literally nihilistic.” The mosaic, he continues, “preserves nothing of value. It is literally nothing. It is the absence of a sense of identity, the absence of a sense of community.”60 For Horowitz, the mosaic pattern means only stagnation, inequality, ghettoization, vulnerability to creeping Americanization, and endemic disunity. If one of the functions of a constitutional faith is to guarantee national unity, then the mosaic pattern seems, on Horowitz’s analysis, ill-suited to performing such a task.61 Horowitz’s critique predates most of the disruptions that disfigured Canada’s constitutional landscape in the last three decades of the twentieth century. In a time of relative constitutional stability, Horowitz glimpsed the dark side of Canadian pluralism, its slide into fragmentation and antagonistic solitudes. For some Canadians, the dark side of pluralism is all that they know or can imagine. Moreover, the adoption of the Charter of Rights has not resulted in a more harmonious Canada. If anything, Canadians seem less certain of their destiny, and constitutional reform is even described as the god that failed. “After years of constitutional introspection,” Alan Cairns wrote in the mid-1990s, “our search for the constitutional reforms that were to be the vehicle of our salvation has in fact driven us further apart.”62 This same process of fracturing can be detected within some of the groups that compose Canadian society. One of the striking features of the failed Meech Lake Accord, for example, was the divisions it created within the women’s movement. Many English-speaking women opposed the Accord, whereas the Federation of Quebec Women supported it.63 The dark side of Canadian pluralism thus brings into question the ability of Canadians to live under a common constitution. It may eventually, as Cairns once wrote in the midst of another constitutional crisis, compel Canadians to think seriously about the dissolution of their country.64 In the Quebec Secession Reference, the Supreme Court implicitly arrived at a similar conclusion in part of its opinion by acknowledging a constitutional duty of political actors to negotiate even the

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breakup of Canada if circumstances warranted and if Quebec followed the appropriate constitutional procedures. However, the Quebec Secession Reference also has another part that focused on the special nature of the Canadian union and its constitutional values. In its decision, the Court said that although Canada is a democracy, it is not a majoritarian democracy, because Canadian democracy is predicated on federalism, constitutionalism, and the rule of law, and respect for minority rights, including Aboriginal rights. The Court’s characterization of Canadian constitutionalism is important, especially as it is another way of saying that Canada is a mosaic rather than a melting pot. Such an interpretation receives considerable support from the Court’s discussion of Confederation. In many discussions, Confederation is viewed entirely through Macdonald’s unitary state aspiration, and the emphasis is on the centralizing features of the Canadian federal system.65 In the Quebec Secession Reference, however, the Court emphasized that Canadian federalism “was a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today.”66 The Court noted that the protection of minority rights was an important consideration at the time of Confederation. And it drew attention to Cartier and his idea of a Canadian political nationality. By identifying Confederation more closely with Cartier’s idea of a political nationality than with Macdonald’s centralism, the Court not only jettisoned an unworkable constitutional theory but also glimpsed Canada’s distinctive constitutional faith. In the passage quoted by the Court, Cartier is reported as saying that the Canadian federation would reject cultural assimilation and “form a political nationality independent of the national origin or the religion of any individual.”67 As Donald Smiley observed, “not even the most fervent admirer of Cartier would assert that he was a profound political thinker,” yet he expressed better than the other Canadian founders the core aspiration of the Confederation agreement. “Unlike the founders of the American republic,” Smiley suggested, “the politicians of Canada have never had the alternative of fashioning a political community from the human materials of a people united by religion, common ancestry, language, manners and morals.” The Canadian political nationality, Smiley explained, would have to be a matter of “limited identity” and would require the adoption of measures, unlike the American constitutional faith, predicated on the possibility and desirability of a stable multinational state.68 The American nation rests on a constitutional

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faith in freedom, which makes it an unusual kind of melting pot. The Canadian mosaic also requires a constitutional faith, one that provides it with ties that bind and sustains a different kind of nationhood.

P l u r a l is m a n d t h e Ti es That Bi nd Compared to the American version, Canada’s constitutional faith seems both elusive and unrealized. “The Canada to which we really owe loyalty,” wrote Northrop Frye, “is the Canada that we have failed to create.” Frye also said that although every nation has a buried or uncreated ideal, “no nation has been more preoccupied with it than Canada.”69 But what is the ideal to which Canadians owe their allegiance? Frye did not answer this question. It is reasonably certain, however, that the Canadian ideal cannot be the same as the American. For although both countries celebrate pluralism, they do not celebrate the same kind of pluralism, with the result that different ideals are available to them.70 That Canadian and American pluralism differ significantly is also the starting point of the theory of consociationalism.71 When Canada is described as a consociational democracy, the emphasis is on the absence of a strong national identity to hold Canadians together, with a corresponding focus on the role of political elites in brokering accommodations between the solitudes that compose it. By contrast, the United States is characterized as a country held together by a relatively homogeneous and secular political culture, in which groups with overlapping membership compete to promote their respective interests. Consociationalism is one important way of conceptualizing the differences between the Canadian mosaic and the American melting pot.72 But the consociational model has its limitations. What it does not notice is that behind America’s secular political culture there is a constitutional faith and a civil religion built on freedom. Faith in freedom is a key component of the strong national identity that holds Americans together. But freedom, as American history shows, is a paradoxical concept. When Americans agree about the meaning of their freedom, their society is most characterized by political stability and cultural homogenization. At such times, it becomes possible even to describe an American way of life. But Americans do not always agree about the meaning of freedom. They certainly did not agree in the three or so decades before the American Civil War, and the United States increasingly became two nations rather than one. Not only did

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the South equate slavery with freedom, it also constructed an elaborate nationalist ideology to justify secession from the Union. “Artificially constructed as it was,” writes James McPherson, “Confederate ethnic nationalism was nevertheless powerful.”73 What some contemporary American feminists fear is that the equation of slavery (for women) with freedom (for men) is also the objective behind multicultural citizenship. In each case, the counter to that equation is the new birth of freedom that came with the Civil War and provides Americans with a national ideal. “In giving freedom to the slave,” said Lincoln, “we assure freedom to the free.”74 With respect to Canada, one of the deepest flaws of the consociational model is that it postulates solitudes and reduces Canadian nationhood to nothing more than a modus vivendi.75 Not only is the model inadequate as an explanatory device, but it also misunderstands Canadian history. If American history can be read as a multifaceted story about freedom, Canadian history is no less compelling as a multifaceted story about mutual recognition in a mosaic intermixed with elements of amity or fraternity. Writing in the late 1970s, a leading constitutional scholar asked why the Canadian federation was worth preserving. Part of his answer was based on his experiences during the Great Depression and the way Canadians helped one another. He also noted that since then Canadians have established income security schemes and health and hospital insurance. “Regardless of things that divide us,” he suggested, “we have this recognition in Canada that we are our brothers’ keepers.”76 Amity, fraternity, and mutual recognition are also themes that recur in contemporary discussions of multiculturalism. In Selling Illusions, Neil Bissoondath insists: “brotherhood goes beyond the skin to essential notions of humanity.” He then adds: “It is here that multiculturalism has failed us.”77 What Bissoondath does not notice, however, is the other side of multiculturalism, in which it moves beyond liberal concerns about individual autonomy and group membership and becomes part of a politics of mutual recognition in a mosaic that affirms basic humanity without denying cultural differences. Not only does the mosaic differ from the melting pot, but there is also much about Canada’s partially buried ideal of nationhood that remains to be discovered and achieved. Neither historical reflection nor moral clarity will necessarily secure Canada’s future as a multinational and multicultural mosaic. Demands for Aboriginal self-government strain the Canadian political nationality and may even require a recasting of it so as to introduce new forms

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of mutual recognition and more complex understandings of amity or fraternity.78 There are also the contemporary aspirations of Quebec.79 When Americans had to reformulate their ideal of nationhood during the greatest crisis of their history, it was Abraham Lincoln who was instrumental in accomplishing the transformation. “No man since Washington,” wrote Lord Bryce, “has become to Americans so familiar and beloved a figure as Abraham Lincoln. He is to them the representative and typical American, the man who best embodies the political ideals of the nation.”80 The paradox of Lincoln is that he revered America’s past as a heritage of liberty, yet envisioned a different future based on a new birth of freedom. In this way, he both returned to Crevecoeur’s idea of a melting pot and reshaped it. The Canadian mosaic awaits its Lincoln.

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7 Secession and Identity Canada, the United States, and Contemporary Britain as Divided Houses D iv id e d H o uses Anyone familiar with Abraham Lincoln’s great speech on slavery and the crisis of the American Union, or with Hobbes’s theory of sovereignty, or with New Testament accounts of the life of Jesus, knows that a house divided against itself cannot stand. “I believe,” Lincoln said, “this government cannot endure, permanently half slave and half free.” He did not expect the Union to be dissolved or “the house to fall” but he did expect it would “become all one thing, or all the other.”1 What Lincoln never said, but Hobbes and many others have often said, is that division as such or “divided sovereignty” is itself the problem. In “The American Constitution at the Present Crisis,” written a few months after the outbreak of the Civil War, Walter Bagehot, an admirer of Hobbes and proponent of British parliamentary sovereignty, insisted that the critical problem was not slavery but the design of the American Union. “We cannot regard the American constitution,” he wrote, “with the deference and admiration with which all Americans used to regard it.” Virtually all of the ingenuous checks and balances chosen by the American framers had “aggravated the calamities of their descendants.” It was a constitution, he insisted, framed on an erroneous principle and its “inherent defect” was that it amounted to “a collection of imperia in imperio.” Under such a system, he said – echoing Hobbes – the cry of every subordinate aggregate at every critical period would be that their interests were threatened, their authority diminished, and their rights attacked. The only surprise, he emphasized, was that the rupture had not occurred earlier.2

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Canada has not had a slavery crisis or experienced anything like the American Civil War. But the Canadian Constitution recognizes fundamental divisions and incorporates critical fault lines. “In terms of realpolitik,” Pierre Trudeau wrote in the mid-1960s, “French and English are equal in Canada because each of these linguistic groups has the power to break the country.”3 Trudeau’s program of official bilingualism was his attempt to solve the language issue and a vital component of his larger strategy of constitutional reform. But official bilingualism does nothing for the security and viability of the French language within Quebec, which is what most concerns Quebecois patriots.4 “Each generation of French Canadians,” it has been suggested, “appears to fight, intellectually, the battle of the Plains of Abraham all over again.”5 Whatever the truth of this observation, it takes on enormous importance whenever French-speaking Quebecers believe that their language is threatened or diminished by Confederation. Their language, they insist, is not just a means of communication but constitutive of their way of life and identity as a people. They have never doubted its overriding importance for their destiny as a nation.6 “Those who talk to us,” René Lévesque wrote, “about that legal entity, the ‘Canadian nation,’ generally forget that a more fundamental and profound reality lies in the human, cultural and social entity, embodied in the French-Canadian nation.”7 Lévesque rejected the “ancient hobble” of federalism and believed that “Quebec must become sovereign as soon as possible.”8 Americans fought a civil war to settle the slavery issue. In Canada, violent conflict seems less likely, partly because an innovative decision by the Supreme Court has outlined a constitutional procedure for secession. There is also the important consideration that divided houses (or countries) not only exist but their divisions can sustain them, a fact that creates considerable difficulties for absolutist theories of sovereignty. The “divided house” of Confederation dates from 1867, which makes it an old and relatively successful constitutional experiment by most standards. And, with the major exception of the Civil War, the divisions of American constitutionalism have operated as components of “the blessings of liberty.” The important and difficult Lincolnian question, once the viability of divided houses is granted, is: what turns a divided house into a house divided against itself? In the Quebec Secession Reference, the Supreme Court did not answer this question. Nor did the US Supreme Court in Texas v. White. But even if the judges had said more about the dynamics of

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constitutional crises, they could never have said what Abraham Lincoln and John C. Calhoun said about states’ rights and the destiny of the United States, or what Pierre Trudeau and René Lévesque said about Quebec’s identity and the future of Canada. When a divided house becomes a house divided against itself, the crisis always involves more than judges, and legal opinions become part of a constitutional landscape that can include clashes between conflicting ways of life or competing beliefs about identity and destiny. The chapter focuses primarily on the United States and Canada. Contemporary Britain is also experimenting with division – partly in response to Scottish nationalism and other fundamental changes. The sovereignty theories of Bagehot and Dicey are no longer the undisputed last word in British constitutionalism, and what has been called the “Scottish anomaly” raises Lincoln’s famous question in its own distinctive way.

W h y I A m a S e parati s t: T he S o u t h ’ s R e ac t io n a ry Enli ghtenment and   Q u e b e c ’ s U n f in is hed Revoluti on In an essay on “The Contest in America,” John Stuart Mill wrote that the South was “in rebellion not for simple slavery … [but] for the right of burning human creatures alive.” The South, he continued, was a “barbarizing Power” and, if necessary, a “general crusade of civilized Europe” would be called upon to defeat it.9 What is remarkable about Mill’s essay is not its abhorrence of slavery and cruelty, but how little attention it devoted to the mind of the South and its romantic nationalism and reactionary enlightenment.10 Unlike Mill, a Richmond newspaper insisted that “‘even if slavery had never existed,’ the American descendants of Cavaliers and Puritans ‘would have gone to war, sooner or later.’”11 Modern Quebec nationalism is also the subject of conflicting interpretations. In Nationalism and the Politics of Culture in Quebec, Richard Handler focuses on “the negative vision that will not go away.” Quebec nationalism is obsessed with cultural pollution and wedded to totality. “The totality nationalists seek,” he writes, “is that of an irreducible, homogenous unit, securely in control of its borders, self-contained, autonomous and complete.”12 Unlike Handler, the theme of Léon Dion’s Quebec: The Unfinished Revolution is the momentous and liberating changes that have occurred since the early 1960s and that have created “a

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nationalism of growth.” The basic assumption of the nationalism of growth is that “Quebec lies on the threshold of gigantic developments in every sector of thought and activity.” The choice, on this view, is between radical changes to Confederation or separation.13 The South went to war to defend a way of life and its way of life included slavery. In the view of many Southerners, the election of Lincoln had made the war inevitable. But the Southern theory of secession predates Lincoln and found its foremost advocate in Calhoun, who thought of himself as “the Newton, the Galileo, of political science.”14 In the preamble to the Constitution, the emphasis is on “we the people,” but the people referred to were, in Calhoun’s view, the people of the states. Strictly speaking, there was no United States; there were only “these States united as independent and sovereign communities.” The Constitution was a compact between the states, and the federal government was the agent of the states. It was established, he emphasized, as a compact by and between the several states and not as a constitution over them. For many of Calhoun’s contemporaries, secession could be justified as a revolutionary right and, as such, reaffirmed the principles of the American Revolution set out in the Declaration of Independence. But Calhoun repudiated the theory of natural rights. For him, secession was a constitutional right. “That a State, as a party to the constitutional compact,” he wrote, “has a right to secede … cannot, with any show of reason, be denied.”15 In some respects Calhoun was a great defender of minority rights. While Madison believed that a society composed of many different interests was the best safeguard against the tyranny of faction, Calhoun developed the idea of a concurrent majority. What it involves is giving to each portion or aggregate of the community a negative on the others. “It is this mutual negative,” he wrote, “which invests each with the power of protecting itself – and places the rights and safety of each … under its own guardianship.” Veto, check, interposition, and nullification were, he said, simply different names for the negative power. The framers had also created a single chief magistrate or president but this was “a great mistake.” Moreover, the two sections of the country, he warned, were no longer in equilibrium and the resulting alienation and hostile feelings threatened to disrupt the Union. He recommended an amendment of the Constitution to create a plural presidency. A plural executive, he said, would turn a presidential election into the “means of restoring harmony and concord to the country.”16

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The minority rights that Calhoun was most concerned to defend were those essential for the preservation of the Southern way of life. He has been called “the Marx of the Master Class.”17 In opposition to the protective tariff of 1828 and 1832, which favoured Northern manufacturing and disadvantaged the plantations of Southern slave owners, he developed the doctrine of nullification as a conservative measure of redress and, as he wrote, an intermediate point between the “submission and oppression on one side, or resistance and force on the other.”18 When Northern abolitionism and antislavery campaigns received increasing public attention, he gave speeches in the Senate, initially defending domestic slavery and later denouncing the reception by Congress of petitions to abolish slavery. “The subject,” he insisted, “is beyond the jurisdiction of Congress – they have no right to touch it in any shape or form, or to make it the subject of deliberation or discussion.” Although he had no doubt about the morality of slavery or its constitutionality, he warned that “the most unquestionable right might be rendered doubtful if once admitted to be a subject of controversy.” What he feared was that the non-slaveholding states would be persuaded by the fanatical arguments of abolitionists, that hatred would be sown, and that “we must become, finally, two people.”19 For Calhoun, secession was a last resort. An even more vital part of his worldview and of many Southerners was slavery as a positive good. Most Northerners were prepared to accept slavery, but only as temporary compromise and on the condition that it would be eventually extinguished. In the South, the view of slavery evolved. Southerners initially regarded it as a necessary evil, forced upon them by the decisions of earlier generations. Gradually, many Southerners came to believe that “the peculiar institution” conferred enormous benefits on both the slave owners and the slaves. “Never before has the black race of Central Africa,” Calhoun wrote, “attained a condition so civilized and improved … [as] under the fostering care of our institutions.” He believed that slaves in the South were better off than many of the workers in Europe and that the South was thankfully exempt from the dangerous conflict between labour and wealth that was disrupting the stability and quiet of the North.20 “Every plantation,” he wrote, “is a little community, with the master at its head, who concentrates in himself the united interests of capital and labour.” As a result, there was harmony in the Southern states and balance in the Union. Only “deluded madmen,” Calhoun insisted, wished to

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destroy the Southern way of life – “patriots” knew better and would defend it even with their lives.21 If the issue of language is substituted for the issue of slavery, it becomes possible to imagine, in some respects, a Quebec Calhoun. “Calhoun’s concurrent majority,” a distinguished American historian has suggested, “bears more than a passing resemblance to René Lévesque’s ‘sovereignty association.’”22 There remain, nevertheless, important differences between the two thinkers and the two secession crises. The slavery debate was a contest between two incompatible ways of life. To be sure, the North had more than its share of racial hatred and tolerated Southern slavery. But Calhoun and other exponents of the Southern way of life did not just defend the slavery of Black people. They rejected natural equality with respect to all Americans, including white Americans, wherever they lived. That is why Lincoln called the Civil War “a People’s contest.”23 The dynamic of the language debate is different. It is a debate between Quebec and the rest of Canada, but also a debate within Quebec and even between Quebec patriots. At its starkest, it is a debate between two citizens of Quebec, Lévesque (for Quebec) and Trudeau (for Quebec and Canada), and the contrasting theories of language, culture, and destiny that they endorsed.24 When the focus is shifted away from Canada, the debate changes significantly but difficult questions about Quebec’s destiny remain. In the conclusion to Quebec: The Unfinished Revolution, Léon Dion suggested that “the whole problem facing Quebeckers” could be “summed up” in the following questions. “Will they succeed in creating an original synthesis of tradition and ‘progress’ that will mark their coming of age as a people? Now that they have finally dared to make a commitment to the modern world, how will they reconcile it to their heritage?”25 The post-1960 Quebec debate on language, culture, and identity is characterized by an internal pluralism and openness that has no parallel in discussions of the Southern way of life. The internal pluralism is equally remarkable if viewed from the perspective of pre-1960 Quebec under Duplessis, when the focus was on preventing change and protecting the traditional institutions of French-Canadian society from external influences. One of the first books to express the new perspective is Marcel Chaput’s Why I Am a Separatist, published in 1961. “In 1960 alone,” Chaput wrote, “seventeen African colonies … have obtained their independence. And now it is time for the French-Canadian people to arise and claim their rightful place among

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the free nations.” He acknowledged that the situation of French Canada was not identical to the African colonies. But, like them, French Canada had been taken by force and exploited, and “her destiny” continued to rest “to a great extent in the hands of a nation which is foreign to her.” Moreover, the French language had suffered and French Canadians had been forced to learn English. The independence movement was not based, however, on Anglophobia or vengefulness. Nor would independence solve all of Quebec’s problems, and it would certainly create new problems. “We want independence for Quebec,” he wrote, “because it would represent liberation, internationalism, and a springboard into the whole world, whereas the present Confederation, for [us], means isolation and stagnation.” Separatism led to freedom for Quebec, fulfilment as a nation, and “French Dignity in the New World.”26 Chaput’s emphasis was on dignity. In An Option for Quebec, Lévesque focused on the question of “belonging” for the Quebecois and “sovereignty-association” for Quebec and the rest of Canada. “We are Quebecois,” he wrote, and Quebec is “the only place where we have the unmistakable feeling that ‘here we can be really at home.” The core of the Quebecois personality is that “we speak French.” As a conquered people, the Quebecois were, until recently, preoccupied with survival. They lived in a sheltered rural society, in which poverty limited their aspirations. The Quiet Revolution transformed Quebec but the Quebecois were still not masters in their homeland. Moreover, due to a declining birth rate, emigration out of the province, and the arrival of new immigrants who preferred to learn English, “French Quebec itself is, literally, in danger of death.” The Canadian dream of bilingualism, Lévesque insisted, had proven to be a trap for the Quebecois and likewise for the French Canadians outside of Quebec. Canadian federalism was an even worse arrangement, since the two majorities – English and French – repeatedly collided, and the wounds would eventually become irreparable. These paralyzing collisions demonstrated, to Lévesque, the “incredible ‘split-level’ squandering of energy,” and were for Quebec the “most disastrous aspect of the present regime.” The only way forward was to build a new Quebec which preserves “an image that is our own,” and is “as progressive, as efficient, and as ‘civilized’ as any in the world.” And for that to happen, “Quebec must become sovereign as soon as possible.”27 Lévesque provided little discussion of the attributes of sovereignty. Instead, he noted that sovereignty was not autarchy and proposed a

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new Canadian union based on sovereignty-association. The two examples that, in his view, provided “the best inspiration” were the Scandinavian Union and the European Economic Community. The European “miracle” proved that even former mortal enemies could create a successful economic union. The Scandinavian arrangement demonstrated that sovereign states could cooperate so successfully that they might actually develop solidarity in some areas greater than that achieved in many federal unions.28 In Quebec-Canada: A New Deal, a government report with a postscript by Lévesque, the sovereignty-association idea is reiterated and elaborated. Its starting point is that a successful sovereignty referendum would initiate the offer of a treaty with Canada to create an economic union. Under the new arrangement, there would be free circulation of goods, a common currency, and free circulation of people. The recommended agencies included a community council, a commission of experts, a court of justice, and a monetary authority. The legal rights of Quebec’s Anglophone minority were guaranteed; and other communities, such as the Inuit, were promised the means to develop their culture and institutions within Quebec. In the postscript, Lévesque stated that an independent Quebec, secure in its ancestral homeland, would form a new association with Canada, but it would also join the club of sovereign states and welcome people from everywhere in the world.29

I s T h e r e a R ig h t to U n ilateral Secessi on? The most radical secessionist in antebellum America was not Calhoun, even though he constantly emphasized state sovereignty and the right of every state to determine unilaterally its own destiny. It was the Northern abolitionist William Lloyd Garrison who, like other radical abolitionists, regarded the American Union as an “agreement with hell.” The North, he said, should secede from the Union – “a covenant with death” – because every friend of God and liberty knew that there could be “no compromise with slavery” and “No Union with SlaveHolders.”30 Some Quebec nationalists use similar rhetoric. In “Sovereignty, Condition of Salvation,” Jean-Marc Léger insists that the Canadian federation “has the cross of death on its forehead” and deliverance can be found “only in national independence.”31 However, the ultimate appeal of most Quebecois nationalists is to a different argument. They insist that Quebec as a nation forms a people, and they emphasize the democratic right of the Quebec people to determine

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unilaterally its own destiny. When so phrased, the argument for Quebec’s right to secede from the Canadian federation is closer to Calhoun’s theories than to Garrison’s. When South Carolina and other Southern states seceded, they followed Calhoun’s principles; but they did not use them consistently or acknowledge a right to unilateral secession under the new Confederate government. In 1869, four years after the South lost the Civil War, Calhoun’s principles were tested one more time. In the famous case of Texas v. White, which is the judicial analogue of the Quebec Secession Reference, Chief Justice Chase insisted that “the Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” The Union, he said, “was never a purely artificial and arbitrary relation.” It began among the colonies, was strengthened by the necessities of war, and received definite form from the Articles of Confederation – which declared it to be perpetual. Afterwards, the Constitution was ordained to form a more perfect union. “What can be indissoluble if a perpetual union, made more perfect, is not?” The Chief Justice then proceeded to apply his principles. When Texas became one of the States “she entered into an indissoluble relation … There was no place for … revocation, except through revolution, or through consent of the States.”32 Despite its engaging rhetoric, Chief Justice Chase’s opinion in Texas v. White hardly demonstrates, morally or legally, that the American Union is indestructible. The reason is not, as Justice Grier complained in his dissent, that the majority decision proceeded on the bases of legal fictions and ignored the hard political facts of actual secession.33 The problem is simpler: the logic of the Chief Justice’s argument does not establish the indestructibility of the Union. He admitted that the Union could be dissolved through revolution or the consent of the states, and such a union is not indestructible. Nor was he more successful in discrediting the right of unilateral secession. As he noted, Texas had acted “upon the theory that the rights of a State under the Constitution might be renounced, and her obligations thrown off at pleasure.”34 He countered this theory with the indestructibility of the Union. But this is not a very persuasive reply, in view of his admission that the Union could be dissolved. What the Chief Justice needed to show, but did not, was that there were a limited number of means by which a state could remove itself from the Union, and the right of unilateral secession was not one of them.

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The most important reply to Calhoun and the Southern theory of unilateral secession came not from Chief Justice Chase but from President Lincoln. He insisted, first, that the American Union was “perpetual” in the same way that all governments proper were perpetual. “No government proper” had a provision in its organic law for its termination and it would lawfully exist in perpetuity so long as it performed its constitutional obligations and respected constitutional rights. Against such a government, there was a right of revolution if it acted unjustly or unlawfully but no constitutional right of unilateral secession. Second, even if, as Calhoun believed, the United States was not a government proper but only “an association of States in the nature of the contract,” it could not be unmade by one party. One party may violate or break the contract but it would require, Lincoln insisted, all the parties to lawfully rescind it. Third, “nothing should ever be implied as law which leads to unjust or absurd consequences,” yet the theory of unilateral secession, Lincoln insisted, had many unjust and absurd consequences. To take one example, the nation had purchased the land out of which several of the seceding states were originally formed. “Is it just that they should go off, without leave, and without refunding?” The “sophism” of secession, Lincoln believed, falsely assumed “some omnipotent, and sacred supremacy, pertaining to a State.” It also made the even more fundamental and almost comic mistake, Lincoln wrote, of treating the American Union as a “sort of free-love arrangement,” to be maintained only if “passionate attraction” persisted.35 When Lincoln the president reflected on the Southern theory of secession, he was not expected to treat it as a purely legal issue or to wait for a judicial ruling. In fact, he explicitly denied that constitutional questions were to be left to the Supreme Court. “If the policy of government, upon vital questions,” he wrote, “is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers.” But Lincoln also believed that the Court’s decisions were “entitled to very high respect.”36 In Canada, the Supreme Court had to address the conundrum raised by Lincoln when it heard the Quebec Secession Reference. Faced with the refusal of the Government of Quebec to participate in the proceedings on the ground that the case raised political questions unamenable to judicial resolution, the Court replied that its intervention did not “usurp any democratic decision that the people of Quebec may be called upon

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to make.” The questions before it were “strictly limited to aspects of the legal framework in which that democratic decision is to be taken.” Once the legal framework was clarified, it would be up to the people of Quebec to decide if secession should be pursued. The Court based its reply on the belief that “the interpretation of law” was “its area of expertise.”37 Whatever the merit of the Court’s separation of law and policy, the overall substance of its decision (but not every aspect of it) met with the approval of the Governments of Quebec and Canada, at least in the respective statements issued by Premier Bouchard and Prime Minister Chrétien.38 The Court’s decision, the Government of Canada insisted, “protects the legal and democratic rights of citizens of our country for the future.”39 As for the Government of Quebec, it believed that the Court had refused to validate the “anti-sovereignist offensive” of “traditional federalist discourse” and had prepared the way for Quebec’s independence. Where its response to the decision becomes more complicated is with respect to the requirement (for separation) of a “clear” majority as a “qualitative evaluation,” which the Court did not define and the Government of Quebec interpreted as a simple majority vote.40 The Court’s decision was also open-ended in other ways. The Court’s starting point was that the silence of constitution did not imply its irrelevance. It required this assumption to counter the contention that, in view of the silence of the constitution, secession was forbidden because it radically transformed the constitutional order. “The Constitution,” the Court insisted, “is the expression of the sovereignty of the people of Canada. It lies within [their] power … to effect whatever constitutional arrangements are desired.” The Court’s second assumption was that the sovereignty of the people expressed itself through the constitution and its underlying principles. This assumption implied that secession had to be effected through one of the amending formulas, and that Quebec could secede if it respected the relevant constitutional principles and processes. The Court stated: “The federalism principle, in conjunction with the democratic principle, dictates that the clear repudiation of the existing constitutional order … would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes.” The Court’s third assumption was that there were no absolute entitlements. Consequently, the entitlements of all parties – including those of minorities, Aboriginals, the rest of Canada, and Quebec – had to be respected.

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Otherwise, secession would be a naked exercise of power rather than a constitutional process.41 What the Court denied in the Quebec Secession Reference was as important as what it affirmed. Quebec claimed a right of unilateral secession. The Court denied that Quebec had such a right either under the Canadian Constitution or in international law. With respect to international law, the Court said that Quebec could not claim a right of unilateral secession because it was not a colony attempting to break away from an imperial power, and the Quebecois people were not subject to exploitation outside a colonial context. Moreover, the Court noted that Quebecers occupied important positions in the Government of Canada and residents of Quebec freely made political choices and pursued economic and cultural development in Quebec, in Canada, and throughout the world. In saying this, the Court implicitly denied the most radical separatist thesis of all, the belief that Confederation “has the cross of death on its forehead.” The Court’s final denial related to the costs of secession. The Court affirmed the democratic right of the people of Quebec to secede from Canada if the relevant principles and processes were respected; yet secession, the Court emphasized, would not be costless and its costs would include significant economic and territorial considerations. “After 131 years of Confederation, there exists, inevitably, a high degree of integration in economic, political and social institutions across Canada.” And arguments were also raised “regarding boundary issues.” “Nobody seriously suggests,” the Court insisted, “that our national existence … could be effortlessly separated along what are now the provincial boundaries of Quebec.”42 Costs are important but not conclusive. Much depends on the framework within which they are placed. One view is Garrison’s. “Our cry,” he wrote, “is Immediate Abolition … Let Justice be done though the Heavens Fall.”43 Lincoln, who issued the Emancipation Proclamation, took a very different view. He said: “If I could save the Union without freeing any slave I would do it.”44 The situation in Canada is different and, in one important respect, even more complicated. Different because the key issue is language; more complicated because both Canada and Quebec are pluralistic. The urgent task of statecraft in antebellum America was to prevent North and South from dividing the Union into mutually antagonistic and relatively homogeneous sections. Only moral absolutists, such

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as radical abolitionists and extreme white supremacists, were indifferent to this precept of prudence. In Canada, the greatest task of statecraft has been, historically, to prevent fragmentation. The task has often focused on Quebec’s cultural distinctiveness, but it has also included the great disparities between provinces, and increasingly confronts the proliferation of multicultural groups and Aboriginal nationalism. Fragmentation is a problem that Quebec also faces, because it too has Aboriginals, multicultural groups, and a large English-speaking minority. In an essay on Canada, Pierre Trudeau drew attention to “a terrible paradox.” The principle of national self-determination had justified the birth of nations but “could just as easily justify their death.” For with “every sociologically distinct group” within the nation having a “contingent right of secession, the will of the people was in constant danger of dividing up.”45 The Supreme Court has made secession a constitutional option; but it is not a costless option for Quebec and Canada, especially if it produces “a terrible paradox” of spiralling fragmentation.46

Con s t it u t io n a l F a it h s : Ameri ca’s “Central P arad ox ” a n d C a n a da’ s “ Terri ble Paradox” The recurring moral limitation of radical secessionists is their unwillingness to recognize the obligations created by common membership. “The logical weakness of this position,” it has been suggested, “is that conditions are enunciated in which right is entirely on one side and duty entirely on the other, which means in fact there is neither right nor duty.”47 Radical secessionists accept as normal a Manichean vision of the world. Nevertheless, membership in a nation or country is not unconditional. Lincoln recognized the moral right of revolution, the US Supreme Court acknowledged “consensual secession,” and the Canadian Supreme Court outlined a secession procedure. Such concessions and stipulations, though important, do not settle the most difficult questions. Even a secessionist like Calhoun, who postulated a unilateral constitutional right to secede, conceded that the right was an option of last resort, prudently exercised only if important constitutional rights had been violated. Many Quebecois sovereignists make no similar concession, but the people of Quebec do. Many of them regard secession as an option to be exercised only if Quebec is denied its legitimate place within Canada. Behind secession, then, are

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questions about constitutional landscapes and also about when a constitutional faith has encountered a problem it cannot solve. A year before the signing of the Declaration of Independence, Samuel Johnson asked: “how is it that we hear the loudest yelps for liberty among the drivers of negroes?”48 This question exposes what has been called “the central paradox of American history.”49 Washington, Jefferson, and Madison were founders of the American Republic and advocates of freedom, yet they owned slaves. They hoped that slavery would be eventually eliminated, but it was not accidental that freedom and slavery were often together. The paradox can be partly explained by economic factors and racism: slaves became a cheaper source of labour than indentured servants, and Black slaves could be subjected to greater exploitation than white labourers. There is also the consideration of freedom’s republican root. In classical republican theory, freedom is equated with independence, and its natural enemies are tyranny and poverty. From this, it is a short step to the conclusion that those who lack independence, like the poor, are unfit for freedom and should be relegated to workhouses, as they were in England. In America, Black people came to be regarded as brutish and a race apart in order to rationalize their enslavement. In Dred Scott v. Sandford, Chief Justice Taney insisted that not even freed Black slaves were included in the words of the Declaration of Independence because they were members of an inferior class of beings and would always be subject to the dominant race.50 “The paradox,” it has been said, “is American, and it behooves Americans to understand it if they would understand themselves.”51 But to understand the paradox is not to solve it, and it is not evident that there is a solution. Lincoln’s retelling of a famous parable reveals how difficult the problem is. “The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one.” Since Lincoln the President had already issued the Emancipation Proclamation, he added: “Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty.” Unlike Calhoun who regarded slavery as a positive good, Lincoln said: “I am naturally anti-slavery.” He valued independence as much as the republican theorists of the South, but believed that it depended solely on one’s own labour.52 Better than anyone else,

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Lincoln understood “the central paradox of American history” but had no solution for it. What he hoped, before the Civil War, was that slavery would wither away if confined to the Southern States, and if schemes of voluntary emancipation were accepted. Then, the house would no longer be divided against itself. But this hope proved illusory. Initially, because the Supreme Court decided, in Dred Scott, that slavery was protected by the Constitution and could not be confined to the South. Later because the South seceded, in response to his election. It was not the absence of a constitutional faith that led Americans to fight the Civil War. Americans had a constitutional faith. They even agreed that liberty was the core of their constitutional faith; yet this agreement did nothing to resolve the slavery issue and made the crisis of the divided house even more intractable. By the force of arms, the Civil War dissolved “the central paradox of American history” but it left open the question of constitutional faith. Did the emancipation of the slaves create a new constitutional faith?53 Americans do not agree on the answer to this question. Some of them regard the Civil War as the Second American Revolution, and Lincoln as a kind of conservative revolutionary who transformed the Union through the act of saving it.54 In particular it has been suggested that Lincoln’s Gettysburg Address attempted to convince Americans that the Declaration of Independence was the real cornerstone of the American Union and provided the means for correcting the Constitution without overthrowing it. “By accepting the Gettysburg Address, its conception of a single people dedicated to a proposition,” Gary Willis has written, “we have changed. Because of it, we live in a different America.”55 On this view, Lincoln, the Civil War, and the post-Civil War amendments provided a second founding that corrected the first founding, and fundamentally changed the American Constitution by removing its slavery provisions. But there are also arguments on the other side that support a kind of constitutional continuity and an unchanging constitutional faith. In an essay on the law of slave-catchers, Ronald Dworkin criticized Northern judges in free states who enforced the fugitive slave laws because these laws offended basic requirements of due process, were incompatible with the American notion of federalism and state responsibility for criminal procedure, and went counter to “the general structure of the American constitution [which] presupposed a conception of individual freedom.” Moreover, Dworkin insisted that the

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principles neglected by Northern judges were “more central to the law than were the particular and transitory policies of the slavery compromise.”56 In a lecture delivered in 1857, Frederick Douglass, himself a former slave, criticized both “Judge Taney and Mr Garrison” for imposing “mean and satanic limitations” upon the beneficent operation of the Constitution. The word “slave,” he noted, did not even appear in the Constitution and the most prominent framers of the Constitution were opposed to slavery. “They looked,” he wrote, “for the gradual but certain abolition of slavery, and shaped the constitution with a view to this grand end.” He concluded by asking Americans to “live up to the constitution, adopt its principles, imbibe its spirits, and enforce its provisions.”57 A third view is that the debate about the constitutional significance of Lincoln’s new birth of freedom is unresolvable because the constitution is a model instance of an essentially contested concept. What no one denies, however, is that the conflict of 1861 divides American history.58 Canada is different, partly because its constitutional faith is entangled with the “terrible paradox” of self-determination, forcefully articulated in “Federalism, Nationalism, and Reason.” Trudeau wrote the essay before entering federal politics, and its orientation is more pragmatic and conciliatory than anything he wrote after becoming prime minister. Ernest Renan and Lord Acton were then among his favourite authors. Renan, because he insisted that the existence of a nation did not depend on language or religion or geography, but instead on an evolving consensus comparable to a “daily plebiscite.” Lord Acton, because he praised the multinational state and insisted that the ability of different nations to live within the same state was the best test of both freedom and civilization. Trudeau’s conclusion with respect to the “terrible paradox” of self-determination was tentative and openended. He hoped that “a people’s consensus based on reason” would come to provide the cohesive force that societies require, and that politicians would eventually “get emotional about functionalism.” He suggested, approvingly, that Canada was founded in 1867 “on the common sense of empirical politicians” who pragmatically used federalism to bring together “a disjointed half-continent.” And he praised the Judicial Committee of the Privy Council, because if it had not leaned in the direction of the provinces, Quebec separatism might be not just “a threat today” but “an accomplished fact.”59 Almost three decades later, Trudeau wrote “Patriation and the Supreme Court.” It discussed many of the same problems as the earlier

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essay, but the constitutional landscape had changed due to the dramatic events surrounding the adoption of the Charter in 1982 and the failed Meech Lake Accord in 1990. Trudeau described the Court’s Patriation Reference decision (1981) as “the most important decision it ever rendered or ever will render.” The decision “went to the very roots of the constitution” and attempted to determine “the essence of Canadian sovereignty.” Trudeau’s main argument was that the minority opinion that would have allowed the federal government to patriate the constitution unilaterally was the correct position, and certainly better law and better policy than the majority opinion, which in his view fabricated a constitutional convention of substantial provincial consent. The Court’s majority, he suggested, acted on the belief that a compromise would be better than unilateral patriation. But their decision was misguided, he insisted, because it compelled the federal government to accept the notwithstanding clause and an opting-out amendment provision, and allowed Quebec to complain that it was excluded from the changes of 1982, since under the Court’s substantial consent requirement Quebec lacked a veto and refused to participate in negotiations. Underlying these criticisms is Trudeau’s new view of Canada and of the “terrible paradox” of self-­determination. After years of unsuccessful constitutional negotiations, a decision had to be made, he said, about the location of sovereignty. “During the 1980–82 constitutional exercise,” he wrote, “the federal government proposed to cut the Gordian knot by arguing that the sovereignty of Canada ultimately resided neither in the provinces nor the federal government, but in the Canadian people.”60 To cut the “Gordian knot” in the way proposed by Trudeau the former prime minister is not to solve the “terrible paradox” of selfdetermination discovered by Trudeau the public intellectual. Nor does it provide Canada with the kind of constitutional faith that all Canadians can embrace. Even if the changes of 1982 are conceded to be for the good of the entire federation, the procedure by which they were adopted would be difficult to reconcile with the spirit of Confederation and Quebec’s place in the federation.61 In the Quebec Secession Reference, the Court took steps to repair the damage; first, by categorically asserting that Canada is a federal state, and then by elaborating a constitutional procedure by which Quebec can secede. The Court has addressed Quebec’s distinctiveness in other cases as well. In Reference re Supreme Court Act it considered whether a judge of the Federal Court, who was no longer a member of the Quebec

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bar, could be appointed to fill one of three seats reserved for Quebec on the Supreme Court. Since the appointment had already been made and Quebec’s national assembly had unanimously protested it, the case raised constitutional questions of considerable significance. The Court decided against the federal government. Among the reasons it gave was that the provision for three Quebec judges went beyond a concern for specialized training in Quebec’s civil law. Its purpose was much broader and was intended “to ensure that Quebec’s distinct legal traditions and social values are represented on the Court, thereby enhancing the confidence of the people in Quebec in the Supreme Court as the final arbiter of their rights.”62 For Quebec the most important rights relate to language, and the protection of the French language is a crucial test for Confederation. One view, abstractly stated, is that in a country or province or region with more than one language, “the dominant language preaches liberty and equality; the subordinate language talks of borders, security, exclusivity, privileges.”63 This statement parallels, in some respects, Lincoln’s and Calhoun’s descriptions of the American conflict over slavery. But the similarities are tenuous, because far more meaningful compromises are possible in the case of language than with slavery. The South’s final solution was secession and impenetrable borders to insulate slavery. Quebec’s unfinished revolution is not the closed world of the Southern way of life. In “Language Rights and Language Policy,” Frank Scott arrived at three important conclusions: that “every country that has a language problem, attempts to solve it in its own way,” that Canadian bilingualism had to be sensibly applied, and that an independent Quebec would not dispose of the language problem. An independent Quebec, he said, would start with a large English speaking minority and other minorities whose rights had to be respected. Scott recommended “realism” in developing language policy for Canada and Quebec, and emphasized that “language rights must be respected if you wish to have domestic peace.”64 In Ford v. Quebec, the Supreme Court considered the complex issue of language rights and, in particular, a Quebec law that required commercial signs to be in French only. It was a case that, to borrow Scott’s terminology, had significant implications for the domestic peace of Canada. In deciding the case, the Court acknowledged the important role of language in individual development, and the bridge it provided between isolation and community. It also recognized the Quebec government’s legitimate and substantial concern with the

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vulnerability of the French language and the “visage linguistique.” But the government also had to adopt means carefully tailored to its objectives. Requiring “marked predominance,” the Court concluded, would be proportionate to the goal, “but exclusively for the French language has not survived the scrutiny of the proportionality test and does not reflect the reality of Quebec society.”65 Although the Court’s decision provoked significant controversy, and became the subject of actions and reactions that contributed to the failure of the Meech Lake Accord, within a few years it was accepted by the Government of Quebec and incorporated into Quebec’s Charter of the French Language. Whatever can be said for and against the decision, there is a striking contrast between Ford v. Quebec on the language issue and Dred Scott v. Sandford on the slavery issue. By deciding that slavery could not be confined to the slave states, Dred Scott helped to prove that the United States could not be half slave and half free, but must become all one or all the other thing. In contrast, Ford v. Quebec helped to show that, even with respect to fundamental Canadian and Quebecois values, compromise and mutual concessions were part of a distinctive ethic of constitutionalism and evolving constitutional faith.

De bat in g t h e U n io n : C o ntemporary Bri tai n a n d t h e S c o t t is h Anomaly 1787 and 1867 represented new beginnings, yet the American and Canadian founders also imitated – as much as their circumstances allowed – the much-admired British constitution. But the contemporary British constitution is the subject of contestation rather than admiration, and almost no one is sanguine about its future. H.W.R Wade’s 1980 Hamlyn lectures, entitled Constitutional Fundamentals, provide a sobering assessment. His first chapter, on the “Unreformed Constitution,” notes that the Hamlyn lectures were established to remind the people of the United Kingdom “to rejoice in the blessing which their laws and customs bestow on them.” But he is unable to adopt, he said, the viewpoint of a Blackstone, a Bagehot, or a Dicey, or deliver lectures that “glow with admiration of our institutions and of our national genius for adopting what is ancient and obsolete to new and beneficial ­purposes.” Instead, he emphasizes that “there is now deep dissatisfaction with the constitution” and hardly a week passes without “some new call” for a Bill of Rights, entrenched clauses, proportional

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representation, reform (or abolition) of the House of Lords, or some other radical change.66 Just as noteworthy is Neil MacCormick’s British Academy lecture, in 1998, on “The English Constitution, the British State, and the Scottish Anomaly,” which argues that Scottish dissatisfaction with the British constitution reaches back to misunderstandings about the Act of Union of 1707 and the attempt to fit it within a Diceylike constitutional theory. The legitimate claims of Scotland require, MacCormick argues, the replacement of Dicey’s theory of the sovereignty of the uk Parliament by a genuine British federal union or, as many Scottish nationalists increasingly believe, a confederation on the European level in which Scotland has its own constitution and ceases to be influenced by the English constitution.67 In 1953, in the famous case about Royal Titles, Lord President Cooper also questioned Dicey’s views. There was a debate about whether Her Majesty should be called “Elizabeth the Second” or “Elizabeth the First.” The petitioners argued that since the Act of Union was fundamental law and created a new constitutional settlement, it affected the numerical designation of monarchs. Moreover, there had been a Queen Elizabeth of England but not of the United Kingdom. The title for the new Queen, therefore, should be “Elizabeth the First.” The case was decided against the petitioners on a variety of considerations, including questions of the prerogative, statutory interpretation and the jurisdiction of judges. But Lord Cooper also expressed an opinion about the true meaning of the 1707 Constitution. “The principle of the unlimited sovereignty of Parliament,” he wrote, “is a distinctively English principle which has no counter-part in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularized during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form.” He went on to say that the Act of Union extinguished both the Scottish Parliament and the English Parliament, and replaced them with a new Parliament. What he had difficulty in understanding, he said, was “why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament.”68 Dicey’s theory exists in two versions. In The Law of the Constitution, which was published in 1885 and contains the classic version, Dicey was strongly influenced by Austinian jurisprudence, accepted many of Austin’s quasi-logical conclusions about sovereignty, and expressed the theory in a categorical manner. But Dicey also discussed the

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sovereignty of Parliament in Thoughts on the Union between England and Scotland, which he wrote with Robert S. Rait in 1920. The first book is concerned primarily with positivist constitutional law and analytical legal theory, while the main focus of the second book is constitutional morality, constitutional history, and what Montesquieu called “the spirit of the laws.” In Thoughts on the Union, Dicey reasserted the thesis of legally unlimited sovereignty, but expressed it in much more tentative and conciliatory language than Austin or Hobbes ever did. “From one point of view, which is clearly realized by most modern jurists,” he wrote, “the attempt to limit absolutely sovereign power involves something like a contradiction of ideas.” But there was also another point of view. Its focus was constitutional morality and constitutional conventions. Moreover, when this other point of view is properly understood, Dicey went on to say, the enactment of laws “which are described as unchangeable, immutable, or the like, is not necessarily futile.” As an example, Dicey stressed the importance of the provision in the Act of Union for securing the Protestant religion and Presbyterian Church government in Scotland. Its inclusion represented the conviction that it “ought to be morally or constitutionally unchangeable” and that “it cannot be changed without grave danger to the Constitution of the country.”69 Although it contains elements of Austinian legal formalism, Thoughts on the Union is primarily an exploration of the importance of constitutional morality and situates the sovereignty of Parliament within a shifting narrative of Anglo-Scottish relations from 1603 to 1832. Nor is it simply or entirely an unqualified Whig history of the British constitution.70 It is not pure Whiggism because it contains lengthy discussions of failed policies and false starts, and is not blind either to the need for continuing reform or to the role of “luck” in human affairs. Nor does it glorify the past or the present. “Hence, the assertion that the Act of Union was, broadly speaking, a complete success by 1805,” Dicey and Rait wrote, “does not even imply that the government of England or Scotland was at that period a perfectly good and wise system of government.” They acknowledged the importance of British imperialism for the development and success of the Anglo-Scottish Union. They also acknowledged that the removal of the Parliament of Scotland affected the intellectual life of Edinburgh and diminished the influence of Scotsmen on legislation that might affect Scotland. Nevertheless, they believed that there was much that could be said in defence of the Union from both the English and

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Scottish perspective, and that it had achieved a level of economic prosperity and amicable political stability that many other unions had failed to achieve. The constitutional morality that underpinned the Union had gradually led, in their view, to “the moral unity of the British people” – or at least to acquiescence “in the sentiment that the inhabitants of Great Britain formed one united people, at any rate as against foreigners.”71 The most important sentence in Thoughts on the Union is the last sentence, especially for an era like the present when difficult questions are asked about the future of the Union. “Lastly,” Dicey and Rait wrote, “the supreme glory of the Act, that while creating the political unity it kept alive the nationalism both of England and of Scotland.”72 As the geographically smaller and significantly less populous entity, the question of nationalism is particularly important for Scotland. In “The Case for Independence,” written half a century after Thoughts on the Union, Iain MacCormick states the core arguments against the Union and for Scotland as a sovereign state. “In a world of nation states,” he writes, “it seems right that, if Scotland is a nation, the Scottish people should control their own domestic affairs, and make their own distinctive contribution on the international scene.” He describes the founding of the National Party of Scotland in 1928 and the “political reawakening” of the people of Scotland. He also insists that the case of modern Scottish nationalism derives significantly from an awareness of the economic, political, and cultural disadvantages of the Anglo-Scottish Union, including Scottish industry relegated to branch factory status. Moreover, Scotland is one of the oldest nations of Europe with a distinct tradition of law and civilization, and has an important contribution to make to contemporary European and world affairs. An independent Scotland, he emphasizes, would not be isolationist. It would even work out new relationships with England, such as economic partnerships, with sovereignty on both sides and numerical equality of representation in any common assemblies. “I look forward to a time,” he concludes, “when the latter-day imperialists of London realize that the Union between Scotland and England is as out of date as the British Empire.”73 Rather than reject the historic Anglo-Scottish Union completely, which predates the Union of 1707 and begins with the Union of the Crowns in 1603, there are also Scottish nationalists who build on Lord Cooper’s queries.74 In “The Union of 1707 as Fundamental Law,” published in 1957, T.B. Smith accepted Lord Cooper’s analysis

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and went a significant step further. He suggested that Scottish judges were bound by their oaths of office to uphold the fundamental provisions of the Union and to disregard Acts of the u k Parliament that conflicted with them. “This,” he went on to say, “would involve the Scottish courts in a somewhat unequal struggle, and could be justified only on very serious matters.”75 The key premise of Neil MacCormick’s 1998 British Academy Lecture on the English Constitution and the “Scottish Anomaly” is that minimal quasifederalism, with its limited historic concessions to Scottish nationalism, is no longer sufficient and no longer acceptable to the people of Scotland. “Scotland,” he observes, “has been the anomaly that has made an ostensible unitary state … function internally in a markedly federal way.” But it has been, he emphasizes, a federalism of political management and judicial separation, and not a federalism of constitutional form. He acknowledges that there was once, in Scotland, “a shared pride in the massive common enterprise that was the British Empire,” but those days are gone, “and now Europe is, as once before for Scots, far more a theatre of opportunity than a threat to identity.” The times ahead demand great changes, which like many other Scottish nationalists he wholly welcomes. The incorporating union Dicey praised “has finally run out of steam,” and the question now, “as in 1706, is whether federal union in either the older or the newer sense is available in the alternative.”76 Paradoxically, Scotland’s case against the English theory of sovereignty, when understood as a demand for the adoption of a genuinely federal constitution, received strong endorsement in Hamlyn Revisited: The British Legal System Today and in The Dilemma of Democracy, two books by the Lord Chancellor in the Thatcher government. Lord Hailsham’s starting point was his belief that Parliament, as controlled by the governing party in the House of Commons, had become an “elective dictatorship” and “the eclipse of Britain” could not be reversed without fundamental constitutional changes. He distinguished two kinds of democracy: one that centralized power and justified the unlimited authority of the state by appealing to a creed like “the greatest happiness of the greatest number”; the other, like Burke’s, a theory of limited government that diffused power, conferred rights of self-government on communities, and provided protection against the oppressiveness of unions and corporations. “We cannot go on as we are,” he wrote, “for we are living in the City of Destruction.” Even if Britain’s economic problems could be solved by “a miraculous

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draught of North Sea oil, or by some other means,” many other fundamental problems would remain.77 He insisted, for example, that there was over-centralization with respect to Scotland at Westminster, noted that almost all other democracies had a Bill of Rights, and hoped that “Britain would become a genuine federation” with a written constitution that was “subjected to interpretation by the Courts.”78 Although he concluded by noting that “the continuity of our tradition is sadly shaken by the absence of an agreed upon set of values … without which no law or liberty can indefinitely survive,” he also emphasized that he believed “in the British thing.”79 It was another Lord Chancellor who outlined, in 1998, the newly elected government’s much-awaited program of constitutional change and described it as the most ambitious program of constitutional reform in the twentieth century. “Our objective,” Lord Irvine said, is to “decentralise power,” “modernize Parliament,” and “make a shift to legally enforceable rights based on … fundamental human rights.”80 For Scottish nationalists, the most important changes relate to devolution and the government’s attempt to reconcile the sovereignty of Parliament with a grant of self-government in domestic affairs to Scotland. According to one expert on devolution, the effect of creating a Scottish Parliament would be to establish a new locus of political power, which would in turn make it very difficult for Westminster to exercise its (theoretical) supremacy, “except under pathological conditions.” In practice, he suggested, the Scotland Bill would create a federal or quasi-federal relationship between Edinburgh and Westminster with the Judicial Committee of the Privy as the judicial interpreter of the Act.81 But it has also been observed that “the devil may lie in the detail,” and there are details that will not please everyone. For example, the Scotland Bill confers power to legislate on matters for Scotland except for those that are reserved to Westminster, but the schedule of reserved matters occupies nineteen pages. The Scotland Bill also contains “Henry VIII clauses” – that is, the government in London is empowered to react to provisions made under the Scotland Act by making any provision that it deems “necessary or appropriate.”82 These are not the kind of provisions that Scottish nationalists would design. One view of the devolution bill is that “it would be difficult to imagine a greater constitutional revolution in the government of the United Kingdom.”83 A decade later, a British constitutional expert also suggested that the constitutions of Bagehot and Dicey are dead

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or dying. The Westminster Parliament, he writes, “has been transformed into a parliament for England, a federal parliament for Scotland and Northern Ireland, and a parliament for primary legislation for Wales. Westminster has become … a quasi-federal parliament.”84 But the view of the Scottish National Party – which narrowly lost a referendum on independence in 2014 – is that contemporary Britain as a divided house requires even more revolutionary changes, especially given the United Kingdom’s uncertain future in relation to the European Union.85

I d e n t it y, D e s t in y, a nd the Vari eti es o f   C o n s t it u t i onali sm Once memories of the Civil War faded, the US Constitution again became an admired example of a divided house and Lincoln became the authoritative voice of America’s moral destiny. Lincoln had also provided the most concise, if cryptic, explanation of the crisis of the Union. In a letter to the Confederate vice-president, he wrote: “You think slavery is right and ought to be extended; we think it is wrong and ought to be restricted. That I suppose is the rub.”86 For Lincoln, it was a choice between not just two values, slavery or freedom, but two incompatible ways of life, each determined to expand westward and shape America in its own image. America became a house divided against itself when the South recast slavery as a positive good and the North emphasized free labour as the essential component of America’s destiny. “The free labour assault on slavery and southern society, coupled with the idea that an aggressive Slave Power was threatening the most fundamental values … of the free states,” Eric Foner has written, “hammered … [the] issue home … more emphatically than an appeal to morality alone could ever have done.”87 At the founding of the Republic, however, no one regarded slavery as a positive good or identified it with America’s destiny. “Our Country, if it does justice to itself,” Madison insisted, “will be the workshop of liberty to the Civilized World.”88 In 1787, Madison was the foremost theorist of division and the unrivalled exponent of the “compound republic.” But it was only after Lincoln completed Madison’s unfinished work that the divided house of American federalism again became “the most wonderful work ever struck off at a given time by the brain and purpose of man.”89

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In The Canadian Identity, W.L. Morton compared Canada and the United States, noted that American citizens affirmed a creed that included the Declaration of Independence, and insisted that there was “no Canadian way of life.” Anyone, he explained – Inuit, Irish, Ukrainian, or French – could be a subject of the Queen and a citizen of Canada “without in any way changing or ceasing to be himself.”90 A decade later, in 1971, Trudeau praised the Canadian mosaic and said that there was “no such thing as a model or ideal Canadian.”91 There is, however, an important difference between these two views. In one, the unifying element in the Canadian identity is allegiance to the Crown, which allows Canada to embrace multiple and even conflicting ways of life. In Trudeau’s, the answer is less evident and changed over the years. Initially, Trudeau emphasized the importance of reason and recommended a form of functional federalism. Later, he stressed the importance of the Charter and the need to recognize the inalienable rights of Canadians. He also had a third view, which he usually expressed as a question. “The question,” he wrote, “is whether these people of different languages, cultures and institutions have the will and determination to live together in mutual respect and a sharing of social, economic and political institutions.”92 What remained constant was Quebec separatism. When asked why he was such an opponent of it, he answered: “I guess I feel that the challenge of the age is to live together with people who don’t have the same values as yourself.”93 Trudeau hoped that Quebecers would reject separatism and manifest the will to live together.94 But he also opposed special status or “the federalism of empowerment” for Quebec, which most Quebecers regard as essential to full membership in Canada and which Confederation recognized in specific ways.95 As a separatist, Lévesque advocated a two-nation theory and sovereignty association but he also said: “I am a Quebecer first, a French Canadian second … and I really have … well, no sense of being Canadian.”96 Léon Dion was a Quebec nationalist but uncertain about Quebec separatism and about Canadian federalism. “When I think of Quebec, my homeland,” he wrote, “my heart beats fast; when I think of Canada, my country, reason takes over.”97 Canada, as Morton said, has “a destiny to work out,” but its destiny “has never been manifest, but always exceedingly obscure.”98 Morton expressed this view before the failure of the Meech Lake and Charlottetown Accords, and their failure has made Canada’s

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destiny even more obscure. Quebec also has a destiny to work out, but with the failure of two sovereignty referendums, its destiny is as obscure as Canada’s. During the crisis of the Union, Lincoln told Americans that they could not “escape history,” and had to finally choose between two ways of life, one of which was “the last best, hope of earth.”99 Canadians and Quebecers believe that their country should embrace many different ways of life. But although they know what their destiny should include, they do not always agree on how best to realize it or even, at times, how to keep their divided house from becoming a house divided against itself. Great Britain once knew what its destiny was, and even fulfilled it. Contemporary Britain has lost not just an empire but also the sense of unity that went with it. It is experimenting with new constitutional arrangements and practises new forms of Home Rule to keep its divided house from becoming a house divided against itself. Britain is pursuing “her destiny,” Lord Hailsham said, in conditions less favourable “than ever before since the reign of Elizabeth I.” But he also said that he believed in the “British thing.”100 If the “British thing” means anything, it is that there is more than one form of constitutionalism, more than one type of divided house, and more than one kind of constitutional faith.

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8 The Spirit in the Land and the Spirit of the Constitution Aboriginal Self-Government in Canada and the United States

“ W e W il l B e J u s t I n Our Ti me” Two speeches, one by the prime minister of Canada in 1969 and the other by the president of the United States in 1970, reveal a great deal about the complex and changing destinies of Indigenous peoples. They also help to illustrate important differences between the Canadian and American constitutional faiths. The subject of Trudeau’s speech was the Government of Canada’s recently released Statement on Indian Policy. Trudeau began by saying that Canadians were not and should not be proud about their role in the treatment of Indigenous people. Indians, he said, had been set apart and too often lacked the power or means to improve their condition. They had been ghettoized as a race, in law, in their relations with government, and socially. But Indians and all Canadians were now “at the crossroads.” Indians could continue to have special status in their “ghetto” or they could decide to become “Canadians of full status.” If they become prosperous and wealthy as equal citizens, they would be expected to pay taxes to help less fortunate Canadians. If they decided to keep their special status, the Government would respect existing treaties but would not recognize what were referred to as Aboriginal rights. Even the treaties could not go on forever, because one section of society could not have a treaty with the other section. Indians emphasized that they were here first and were given worthless things for large expanses of land. But if Aboriginal rights were to be restored, what about the French who were defeated on the Plains of Abraham or the

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Acadians who were deported or the Japanese Canadians who were treated badly during the last war? Trudeau agreed with what President Kennedy said when asked about the injustices suffered by Black people in America. “We will be just in our time. This is all we can do.”1 President Nixon’s long-awaited statement was a special Message to Congress. It began by acknowledging past wrongs and injustices against “the First Americans – the Indians.” It said that the First Americans “are the most deprived and isolated minority group in our nation” and it emphasized that from their first contact with European settlers, the Indians had been “oppressed and brutalized, deprived of their ancestral lands, and denied the opportunity to control their own destiny.”2 It went on to say that even in those cases when a federal program was intended to meet their needs, it often had only highly negative effects on the First Americans by producing a “burgeoning Federal bureaucracy” and an “erosion of Indian initiative and morale.” Despite the aggressions against these Indigenous people, however, theirs was a record of survival, adaptation, and enormous contribution to America’s art, culture, strength, and spirit. The time had come, the president said, “to create the conditions for a new era.” For this to occur, the Government had to reject two past policies alternatives, namely, extreme paternalism and the goal of terminating the special status of the Indian. To terminate their special relationship with the Federal government “would be no more appropriate than to terminate the citizenship rights of any other American.” The way forward was to encourage “self-determination among the Indian people … without the threat of eventual termination.” New legislation would enable a tribe, with technical assistance from the federal government, to control programs related to health, education, and welfare. More money would also be available to the tribes for economic development. Since more of America’s Indians were living off reservations than ever before, new measures would also be proposed to help Indians dwelling in urban centres. What he was proposing “was a new and balanced relationship between the United States Government and the First Americans.”3 The response of many American Indians to the President’s Message was cautious, because although they approved of its content, they were skeptical that actions would match words. But significant administrative actions and legislation followed, and a start was made “at last for the realization of [Indian] self-determination.”4 In contrast, Trudeau’s speech and the Government’s Statement on Indian Policy

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were widely viewed as one more attempt at crude assimilation. Aboriginal leaders, Sally Weaver noted, “felt duped by the consultation process and were incredulous at the government’s assertions that the White Paper was a response to their demands.” Its long-term effect was to significantly increase Aboriginal distrust of government and it became “the single most powerful catalyst of the Indian nationalist movement.”5 In 1970, Trudeau acknowledged that the Government’s recommendations were flawed and had perhaps been based on the prejudices of “small ‘l’ liberals, and white men at that.”6 In 1973, the Supreme Court ruled, in Calder, that Aboriginals had not only treaty rights but also Aboriginal rights based on occupation of the land that would have to be determined on a case-by-case basis.7 In 1982, existing Aboriginal and treaty rights were entrenched in the constitution. But, paradoxically, not even the formal entrenchment of Aboriginal rights accomplished for the Canadian polity what the President’s Special Message did for the United States.8 Aboriginal rights and Aboriginal self-government remain far more contested in Canada, partly because they raise enormously difficult questions about the Canadian identity and the spirit of Canadian constitutionalism, questions that have no parallels in the United States.

T r iba l S e l f - G overnment a n d   A m e r ic a n   C o n sti tuti onali sm In the United States, Aboriginal self-government and Indigenous difference require Americans to acknowledge, first of all, the long and violent history of white colonialism and its devastating legacy. What is also required is recognition of the limits of American liberalism, and acknowledgement of the inherent dignity of ways of life that are not part of the American creed or America’s “new world” destiny. “When the American creed is detected,” Gunnar Myrdal wrote in An American Dilemma, “the cacophony becomes a melody.” He went on to say: “America, compared to every other country in the Western civilization, large or small, has the most explicitly expressed system of general ideals in reference to human interrelations.” Whatever else it is, it is unquestionably and predominantly a “liberal Creed” that affirms a constitutional faith in the autonomy of the individual and in the classical liberal rights and freedoms. Myrdal referred to the “American creed of liberty, equality, justice, and fair opportunity” and noted that it included a “cult of the Constitution” which was “an

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act of American nationalism.”9 When the US Constitution was adopted, Madison, Jefferson, and all those who cherished American independence agreed that “an elective despotism was not the government we fought for; but one … founded on free principles.”10 In the midst of the American Civil War, Abraham Lincoln prayed for the preservation of the Union and “a new birth of freedom.”11 To emphasize the liberal character of America’s identity and destiny may seem banal and uncontroversial; yet no topic is more passionately debated, and none is more important for Indigenous difference and tribal self-government.12 From the standpoint of American history and the American creed, the tragedy of the American Indian is only comparable to – and partly overlaps with – what Myrdal called the “Negro problem.” Reflecting on American slavery, Jefferson remarked that it was as if “we have the wolf by the ears, and we can neither hold him nor safely let him go. Justice is in one scale and self-preservation in the other.”13 Jefferson had no solution to the “Negro problem” but he knew which side justice was on, and he feared that a just God would one day punish the American people. Jefferson also grappled with the “Indian problem.” His account of Tachnedorus is admired as a moving image of the Indian as noble savage, but he also believed that the Indian way of life was a lost culture. “Ultimately, in Jefferson’s view,” it has been suggested, “the Indian nations would be either civilized and incorporated into mainstream American society or, failing this … ‘exterminated.’ The Jeffersonian vision of destiny … had no place for Indians as Indians.”14 Lincoln abhorred slavery even more than Jefferson did, and he was sympathetic to the plight of the American Indian. As president, he recommended reforms to the patronage system that exploited Indian lands and intervened to save several hundred Sioux from execution by questionable military tribunals. But like many others of his time, he regarded American Indians as members of a dying race left behind by (white) civilization. The Indian, in his view, was a savage, nonfarming hunter and an inherently violent barbarian. Lincoln’s call, as David Nichols observed, to “bind up the nation’s wounds” at the end of the Civil War was never meant to apply to Native Americans.15 Aboriginals are understandably suspicious of America’s liberal ethos. Their opposition is not based exclusively on the injustices they have experienced. They also believe that a liberal ethos is inherently destructive of their way of life because it attaches too much importance

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to atomistic individual freedom and too little importance to tradition and communal values.16 One response is to reiterate the view of Jefferson and Lincoln, and insist that Aboriginal cultures are dying cultures with no place in the modern world. An unexpected and intellectually subtle version of this kind of response is George Grant’s Lament for a Nation. Grant was Canadian and had little interest in Aboriginal issues, either Canadian or American. He was a dedicated Canadian nationalist and committed “red Tory” who spent much of his life studying American liberalism and concluded that it was destructive of all traditional and particularistic modes of life. The essence of American liberalism, he believed, was a commitment to technology and a belief in unlimited individual freedom. America’s ultimate mission was to homogenize the world by spreading the gospel of capitalism. “Even the finest talk of internationalism,” he wrote, “opens markets for the powerful.”17 His startling conclusion was that American liberalism was synonymous with modernity, and Canada (a traditional culture) was destined to become a junior member in the American empire and adopt the American way of life. The significance of Grant’s book is that, when coupled with the assumptions of Jefferson and Lincoln noted above, it can help to make explicit crucial and controversial ideas about modernity and the kind of lives that Aboriginal communities or multicultural groups or even nations can or cannot live within it.18 Is American liberalism necessarily destructive of aboriginality? Grant’s answer, which is embedded in his book, is that like Canada or Quebec, Aboriginal cultures cannot survive and no human efforts can save them from ultimate extinction. Much of American history – from Jefferson to Lincoln to the Dawes Act – affirmed a crude acceptance of this assumption, coupled with coercive government policies and military actions explicitly designed to relocate and breakup Indian tribes, or undermine tribal authority, or extinguish tribal ways of life.19 Jefferson, the apostle of the American way of life, regarded “the Indians as … fated to lose their land to a deserving white yeomanry.”20 Andrew Jackson insisted, in the 1830s, that Indian tribes could not exist as independent enclaves within the states and had to move west beyond the frontier or be subject to state and local laws. And in 1887, Congress passed the Dawes Act. Proceeding on the assumption that “any high degree of civilization is [not] possible without individual ownership of land,” Congress provided for the allotment of tribal lands to individual Indians and the sale of the

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surplus to white settlers. Although the program was eventually halted, Indian land holdings were reduced from 138 million to 52 million acres.21 At times, the Supreme Court has also endorsed assimilationist and racist assumptions. A line of cases, stretching from Kagama (1886) to Lone Wolf (1903), conceptualizes Indian tribes as lost societies, incapable of wielding government authority. In Kagama, Justice Miller described Indian tribes as “wards of the nation” and dependent on it “for their daily bread.” “The power of the General Government,” he wrote, “over these remnants of a race once powerful … is necessary to their protection, as well as to the safety of those among who they dwell.”22 The duty of federal and state authorities, the Court held in these cases, was to fill the void left by the disintegration of the tribes. But there are also cases that reject racist and assimilationist assumptions, and regard the tribes as self-governing and culturally distinct societies, even semi-autonomous nations within the United States. They include numerous contemporary judicial decisions as well as three much earlier decisions by Chief Justice Marshall, namely, Johnson and Graham’s Lessee v. M’Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia. The most important is Worcester v. Georgia (1832). It involved Samuel Worcester, a missionary, who was sentenced by the State of Georgia to several years of hard labour for residing without a state licence within the boundaries of the Cherokee nation. He had the permission of the tribe but not the State of Georgia. On appeal, the Supreme Court declared the Georgia law null and void. The Cherokee Nation, the chief justice held, “is a distinct community, occupying its own territory … in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress.”23 Samuel Worcester won his case but remained in prison. The government of Georgia simply ignored the decision. President Jackson was no more sympathetic and is reported to have said: “John Marshall has made his decision. Let him enforce it.”24 When judged by its immediate political results, Worcester v. Georgia was a significant defeat both for the authority of the Supreme Court and for the autonomy and way of life of American Indians. But Worcester v. Georgia and the two other cases decided by Chief Justice Marshall also articulated foundational principles derived from the American constitution and American constitutional history, which though ignored for more than a century have been rediscovered and

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vigorously reaffirmed as law by the contemporary Supreme Court. In Johnson and Graham’s Lessee v. M’Intosh, the chief justice began by acknowledging that Europeans claimed rights of conquest and discovery. The nations of Europe, he noted, were eager to appropriate to themselves as much of the New World as they could. However, the rights of the original inhabitants were never “entirely disregarded.” They were admitted to be “the rightful occupants of the soil,” even if “their rights to complete sovereignty … were necessarily diminished.”25 In Cherokee Nation, the chief justice added that “the relation of Indians to the United States is marked by peculiar and cardinal distinctions.” The Indian tribes were “domestic dependent nations” and “their relation to the United States resembles that of a ward to his guardian.”26 The chief justice elaborated these themes in Worcester, in which he described Aboriginals before European contact as “a distinct people, divided into separate nations … and governing themselves by their own laws.” The Government of United States, he insisted, had always treated the tribes as nations, entered into treaties with them, and recognized their status as self-governing communities. For their part, the tribes acknowledged that they were under the protection of the United States. But protection, the chief justice emphasized, did not imply “the destruction of the protected.”27 Ultimately what Chief Justice Marshall rejected, as a matter of constitutional law, was forced assimilation of American Indians because it conflicted with recognition of their rights as domestic dependent nations. In other situations where racist beliefs and facile presumptions about cultural superiority have been eliminated, assimilation becomes a topic about which much can be said on both sides if it is voluntarily chosen. But forced assimilation is destructive of a way of life, damages the health and well-being of both the individual and the community, and violates the duty of protection owed to American Indians. As a result of policies of land in severalty and forced non-Aboriginal schooling, “Indians became a demoralized people, lost between their historic identity and the white American culture they could not accept.”28 However, the situation of American Indians started to change in 1960, in part because contemporary Supreme Court decisions began the process of restoring the measured separatism owed to them and that Chief Justice Marshall defended in Worcester. As the Supreme Court noted almost 130 years later, “despite bitter criticism and the defiance of Georgia which refused to obey this Court’s mandate in Worcester, the broad principles of that

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decision came to be accepted as law.”29 Conditions in Indian country have improved, Charles Wilkinson has written, “due most prominently to the will of the Indian people, but they in turn have relied most prominently on the law.” Many tribes can now obtain enough fish and game for subsistence, as well as for religious and commercial purposes. Tribes control significant aspects of law and order on reservations. They are also able to control the education and custody of their children. “Perhaps, at last,” Wilkinson concludes, “the tribes can begin to withdraw from the judicial system and train their energies on fulfilling their historic tasks of creating workable islands of Indianness within the larger society.”30 Was George Grant wrong, then, to identify liberalism with assimilation, modernity with technology, and America with the disappearance of culturally particular ways of life? If American Indians are in fact beginning to create workable islands of Indianness, is the ethos of American liberalism more protective of cultural diversity than is usually supposed? One answer is to acknowledge liberalism’s assimilationist impulse but deny the inevitability of assimilation. Grant was not a crude determinist and, in any case, was more concerned with ridiculing the pernicious pretensions of the age of progress than with rigorously demonstrating the impossibility of cultural distinctiveness in the modern world.31 Moreover, a liberal society can impose limits and restraints on itself and, by so doing, recognize the duties it owes to societies that do not share its ethos. Many contemporary Supreme Court decisions articulate such a position. Why, asks Charles Wilkinson, has the contemporary Court “refused to allow American Indian tribes to be engulfed by the passage of time”? His answer is that the treaties and treaty substitutes emanate a morality that contemporary American judges consider fundamental.32 Real promises were made, and most judges cannot ignore that fundamental fact. If Indian treaties are part of the law, liberal America cannot ignore them without violating the rule of law, which is one of its most important values. In “The Perpetuation of Our Institutions,” Lincoln noted how important it is for America. “Let every American, every lover of liberty,” he said, “swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others.”33 The assimilation of Indians has been halted, even reversed, and American tribes have begun to witness a new birth of freedom, partly because contemporary liberal America respects the rule of law and, as a consequence, the protection it affords to tribal ways of life.

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Just as significant is the paradoxical way the American constitutional faith combines a strong assimilationist impulse with a pervasive concern for individual freedom and minority rights. In People of Paradox, Michael Kammen insisted that the idea of the United States as a melting pot is “a myth.” For although American governmental and cultural impulses have been “in the direction of uniformity,” the economic and social imperatives as well as the geographical expanse of the United States “have all fostered pluralism.” He also noted that the United States has stable democratic pluralism, partly because its contradictory tendencies operate within an explicit constitutional framework that includes an independent judiciary.34 In a famous footnote in the Carolene Products case, Justice Stone also reflected on the contradictory tendencies of American society and insisted that a crucial function of the Supreme Court was to protect “discrete and insular minorities.” When societal prejudice, he said, rendered inadequate the safeguards inherent in the political processes of pluralist democracy, the Court’s duty was to protect the rights of vulnerable or politically isolated minorities by undertaking a “more searching judicial inquiry.”35 Justice Stone’s position can be generalized and applied, with some modifications, to American Indians. As a discrete and insular minority, American Indians and Indian culture are vulnerable to the choices and prejudices of white society. Since liberalism values choice (or autonomy), and since, as Will Kymlicka has emphasized, the choices of American Indians are undermined by white society, then American liberalism has, on Kymlicka’s argument, one more reason to recognize the right to tribal self-government and the other protections owed to American Indians.36 In contemporary America, tribal self-government and Indigenous difference are more secure than before, partly because America’s liberal ethos has increasingly come to terms with the requirements and implications of American constitutionalism.

“T he W h o l e C o n s t it u t ion I s up for Grabs ”: Can a d ia n A b o r ig in a l s a nd Confederati on Almost no one has said of the American Constitution what Pierre Trudeau said of the Canadian Constitution. Even during the greatest crisis of the Union, as Abraham Lincoln noted, Americans professed contentment with their Constitution provided all rights were respected.37 In the 1960s and afterwards, Canada witnessed a series of constitutional crises and widespread demands for a new,

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made-in-Canada constitution. What Trudeau said was that “the whole constitution [was] up for grabs.”38 This difference in outlooks matters for Aboriginal rights, even though Canadian and American Aboriginals have experienced many of the same problems of colonialism and forced assimilation. As victims of colonialism, they have been brutalized and oppressed, deprived of their lands, and treated as members of dying cultures. When equality was initially offered to them, it came as coercive indoctrination in “white culture” in residential schools and other abusive programs of assimilation. Indigenous people have rejected forced assimilation, exhibited the will to survive, and insisted on their right to self-government on land that belongs to them. These are some of the similarities. What then are the differences? One important difference relates to the societies they confront. Canadian and American Aboriginals do not simply assert their rights. Nor is their objective to expel the colonizer from Canada and the United States. Instead, they assert their rights and demand the recognition their rights deserve.39 But recognition, as several studies have shown, is a complex process that can have puzzling and problematic dimensions when the aspirations of individuals, groups, nations, and cultures clash.40 Moreover, recognition presupposes more than one party; for it to occur, each party must acknowledge the rightful claims of the other. In Canada, the dialectic of recognition is far more complex than it is in the United States. When “the whole constitution is up for grabs,” the dialectic of recognition – whether concerned with Quebec’s distinctiveness or Aboriginal self-government – can lead nowhere. The failed Meech Lake and Charlottetown Accords demonstrated this because of the sheer number of constitutional actors. At other times, it can become mired in seemingly endless and multifaceted debates about the identity and destiny of Canada.41 Nevertheless, one of the most compelling grievances of Canadian Aboriginals is that the Confederation Settlement of 1867 provided little recognition of their rights, established a paternalistic regime in relation to them, and set in motion a campaign of assimilation. Duncan Campbell Scott’s 1920 statement is a stark reminder: “I want to get rid of the Indian problem … Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question.”42 Unlike Scott, Trudeau had a far more pluralistic vision of Canada and the place of Aboriginals in it. The White Paper acknowledged that Indians lacked money, power, and education. “To be an Indian,” it noted, was even to lack the power “to change your own condition.” Part of the solution

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proposed was to open “the doors of [equal] opportunity” to Canadian Aboriginals and bring to an end their special status. But it was never Trudeau’s objective to create a Canada in which “there is not a single Indian.” The White Paper explicitly rejected the view that there were only two choices, namely, segregation or assimilation. The third choice was, in effect, Aboriginal membership in Canadian multiculturalism.43 For most Aboriginals, however, the multiculturalism option was a thinly veiled form of assimilation. “In some ways,” Ovide Mercredi and Mary Ellen Turpel have written, “the White Paper was the First Nations’ equivalent of the Lord Durham Report that enraged Frenchspeaking Quebecers. It was a proposal for assimilation into Canada and it showed no recognition or acknowledgement of First Nations treaties or collective rights.”44 Although the entrenchment of Aboriginal and treaty rights in the Constitution Act, 1982, has made much of the White Paper irrelevant, it has not resolved – at least, not explicitly – the most important issue discussed in it. The White Paper insisted that there was a new way forward and a third option. Since Aboriginals reject Trudeau’s multiculturalism option and the settlers are to remain in Canada, what is the new way forward? One answer was provided by Chief George Erasmus in 1987, in his evidence on behalf of the Assembly of First Nations to the Special Parliamentary Committee on the (failed) Meech Lake Constitutional Accord. He began by saying that although First Nations supported Quebec’s aspirations for constitutional renewal, the “circle of Confederation would not be complete simply with the entry or re-entry of Quebec alone into the Canadian family.” It would only be complete when the rights of the Aboriginal peoples were “unequivocally expressed and recognized” in the Constitution. Moreover, he was concerned that the proposed Accord perpetuated the idea of duality in Canada, strengthened the myth that the French and English peoples had founded Canada, and distorted history so much that it was as though First Nations never existed. The French people in Quebec, he said, were a distinct society, but “if anyone is more distinct, surely it is the peoples of the First Nations.”45 In Chief Erasmus’s evidence to Parliament, the new way forward and the third option is that Aboriginals form a nation like Quebec and, together with Quebec and the rest of Canada, are equal partners in a three nation circle of Confederation. What significantly complicates the three-nation conception of Canada, and destabilizes equal partnership as a way forward, is the idea of sovereignty. Because Canada is a mosaic rather than a melting

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pot, it cannot, logically, contain only one nation. As a mosaic, it can and should accommodate, logically, two (Canada-Quebec) or more (Canada-Quebec-Aboriginals) nations. Trudeau implicitly acknowledged as much: initially in his 1960s essays on federalism that celebrated the multinational state; later and far more cautiously, when he opposed the Meech Lake Accord but conceded that Quebec’s identity as a distinct society was a “sociological reality.”46 Multinationality is a Canadian orthodoxy with deep constitutional roots. Multiple sovereignties (in the Hobbesian or Austinian sense of sovereignty) is not. Even the compact theory of Confederation, to which Quebec and Aboriginal nationalists frequently appeal, was articulated in terms of nations or cultures or provinces. When the Confederation proposal was before the British Parliament in 1866, Lord Carnarvon described it as a “treaty of union.” A legislative union, he said, had been “impracticable” because of Quebec’s pride in “her ancestral customs and traditions.” Quebec was willing to accept Confederation “only on the distinct understanding that she retained them.”47 After Confederation, provincialist versions of the compact theory were developed by Oliver Mowat and T.J.J. Loranger.48 The idea of Confederation as a “racial” or cultural compact, G.F.G. Stanley wrote, was a “gentleman’s agreement” with a moral sanction that many considered “a convention of our constitution.”49 In this regard, the Canadian compact theory is unlike the American theory – especially Calhoun’s version, which presupposed fully sovereign states entitled to nullify federal legislation and armed with a right of unilateral secession. Confederation was not meant to replicate the American Union, and certainly not Calhoun’s ideas. But constitutional landscapes are not frozen in time and contemporary Canada has witnessed the political articulation of at least three theories or views of sovereignty. One theory is articulated in Lévesque’s An Option of Quebec. “We would be dreaming,” he told Quebecers, “if we believed that for the rest of the country our minimum can be anything but a frightening maximum.” Because the two majorities desired the same thing, they would inevitably collide and cause hurts that were irreparable. Quebec, he said, had to seize independence and “complete mastery of every last area of basic collective decision-making.”50 What Quebec would offer the rest of Canada was an economic partnership under which the two nations retained their sovereignty. The second theory is Trudeau’s. He began by praising multinational federalism, became increasingly concerned

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about Canadian unity, and concluded his career by identifying the Charter of Rights with the sovereignty and unity of the Canadian people.51 He hoped that the preamble to the constitution would one day say that Canada was a sovereign nation based on the sovereignty of the people.52 Canadian Aboriginals take a third and complex position on sovereignty. Some Aboriginals view the EuropeanWestern idea of sovereignty with suspicion because of its apparent association with authoritarian state structures that are difficult to reconcile with their communal and consensual way of life.53 Others have said that “sovereignty … is a concept that does not have a ready analogue in Aboriginal languages and world views.”54 Still others, however, insist on the crucial importance of Aboriginal sovereignty for Aboriginals peoples, believe that the concept “will remain open,” and suggest that “the meaning of Aboriginal sovereignty in all its diversity is best understood by listening to the myriad voices of Aboriginal peoples themselves.”55 The best-known Western political philosopher of sovereignty believed that a kingdom divided in itself cannot stand.56 American history provides, paradoxically, a fascinating refutation of Hobbes’s view as well as a sobering confirmation of it. The refutation comes at the beginning of the Republic when Americans were debating the viability of the Constitution of 1787. Among the objections to it was that it attempted to create – Anti-Federalists contended – a consolidated national government that was incompatible with the sovereignty of the states. There was also the criticism, voiced by Samuel Adams, that the proposed Constitution established an “Imperia in Imperio justly deemed a solecism in Politicks.” And James Winthrop said: “we shall find it impossible to please two masters.”57 The reply of the American framers – and the implicit American refutation of Hobbes – was not just that the checks, balances, and divisions of the Constitution secured liberty for all, but that the sovereignty of “we the people” was greater than and incorporated the sovereignty of the states.58 There is also an American confirmation of Hobbes that occurs several decades later. Writing in 1863, E.A. Freeman noted that there existed a “prejudice against Federal Government,” partly because it was thought that “the disruption of the greatest Federal Government” proved that no federal government “can possibly hold together.”59 What others noticed about the “disruption” was that Southern secessionists, unlike the Anti-Federalists of 1787, denied the sovereignty and even the existence of the American people. For them, the American

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Union consisted solely of states with each state possessing unlimited sovereignty. When the United States no longer had anything to hold it together it became, in 1861, the “Imperia in Imperio justly deemed a solecism in Politicks.”60 The closest contemporary Canada has come to the American crisis of 1861 is the nearly successful 1995 sovereignty referendum in Quebec. Under enabling legislation, the National Assembly was authorized, contingent on an affirmative vote, to propose an economic partnership and political treaty with Canada. A new constitution would declare Quebec to be a French-speaking country, and would protect and promote its culture. It would contain (unspecified) guarantees for the English-community and would recognize the (unspecified) right of Aboriginal nations to self-government.61 Moreover, Quebec’s right to secession was asserted to be extra constitutional and unilateral. One of the strongest opponents of the sovereignty referendum was the Cree Nation of James Bay.62 They dismissed it as illegitimate and undemocratic. Legitimacy, they said, was not determined by a simple majority vote, especially when the rights of distinct peoples were affected. “We are Eeyouch. We are a people. We have … occupied our land and governed ourselves for the past 9000 years.” The Cree Nation included 12,000 Aboriginal people. They refused to become victims of their own silence and objected to the myth, in Quebec and Canada, that there were only two founding peoples. “If the pq government,” they observed, “is acting in a manner to undermine the functioning of the Canadian federation, how can the government … declare that Canada is not working?”63 They also asked on what basis Quebec could claim that Canada was divisible, yet deny the divisibility of the territory of a secessionist Quebec? Few Aboriginal nations claim, as Quebec separatists do, a sovereign right to unilateral secession. Many insist, however, that they possess not only an inherent right to self-government but also an unrestricted right to complete self-determination. The failed Charlottetown Accord described Aboriginal self-government as an “inherent” right and as the third order of government “within Canada.”64 Shortly after the failure of the Accord, the Royal Commission on Aboriginal Peoples issued a special discussion paper on self-government with the title of Partners in Confederation. According to the Commissioners, since the right was “inherent” it was in no way affected by the failure of the Accord; and, in any case, the required recognition was already provided

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in section 35(1) of Constitution Act, 1982 which explicitly affirmed Aboriginal and treaty rights. Based on a review of Supreme Court decisions, the Royal Proclamation of 1763, and other sources, it was suggested that “under the common law doctrine of Aboriginal Rights, Aboriginal peoples have an inherent right to govern themselves within Canada. This right is inherent in the sense that it finds its ultimate origins in the communities themselves rather than in the Crown or Parliament.” The Commissioners went on to describe s.35 as a “constitutional watershed” and insisted that it confirmed and entrenched “the status of Aboriginal peoples as original partners in Confederation.” The compact theory of Confederation, they believed, should be extended beyond the context of the 1867 Act and applied to Aboriginal peoples. The Crown was the symbol of political association similar to the great Tree of Peace of the Five Nations Huron Confederacy. “In a way, Canada can be seen,” they suggested, “as a partial and imperfect realization of this ideal, as a multi-national Confederation of peoples and communities united in peace and fellowship.”65 The thesis of Partners in Confederation is that “Section 35 does not warrant a claim to … complete sovereignty.” Rather, Aboriginal governments, like federal and provincial governments, “operate within a sphere defined by the Constitution.” The Commissioners also observed that some Aboriginal nations would choose more traditional structures of government; others would create new structures that facilitated more participation with other levels of government. What is missing from the discussion paper, however, is an explicit consideration of what will keep Canada together as a multicultural society and multinational federation. The Commissioners insisted that in the search for common ground “each party … must recognize and respect the fundamental values, goals and institutions of the other.”66 But Confederation as a partnership requires at least two additional premises, one moral and the other epistemological. The moral premise is ultimate reconciliation for the wrongs of colonialism of the kind envisioned in the Final Report (2015) of the Truth and Reconciliation Commission.67 The epistemological premise is that Aboriginals and other Canadians must be presumed to share overlapping worldviews capable of generating some common and significant structures of governance. To the extent that Aboriginal self-government is tied to a thesis about cultural incommensurability or complete self-­ determination similar to Hobbesian sovereignty, as it sometimes is,

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the best that could be hoped for would be a very fragile country with an uncertain future in which Quebec, hundreds of Aboriginal nations, and the rest of Canada interfered with each other as little as possible.68 When “the whole constitution is up for grabs,” the third option and new way forward is no more likely to be a thesis of Aboriginal cultural incommensurability or complete Aboriginal sovereignty than it is to be a vision of French-English cultural solitudes or a theory (like Lévesque’s) about irreconcilable nationalisms. What is required is a theory and form of citizenship that can begin to make sense of Canada as a mosaic and Confederation as a partnership.

“‘La n d e d ’ C it iz e n s h ip,” “Ci ti zens Plus ,” an d  “ A   C o n s t it u t io n to whi ch Ci ti zens hi p M at t e rs V e ry Li ttle” More than the United States, Canada is a country preoccupied with questions about citizenship and belonging. In fact, much of America’s identity and destiny, as traditionally understood, is most appropriately stated in terms of “the person” or “the natural rights of the individual.” In A Nation of Immigrants, John F. Kennedy asked why so many people had uprooted themselves and come to America. His answer was that “three large forces – religious persecution, political oppression, and economic hardship – provided the chief motives.” He acknowledged, very briefly, the existence of the Indian. He said more about American Black people. “Only in the case of the Negro,” he wrote, “has the melting pot failed to bring a minority into the full stream of American life.” But Americans were finally, he believed, “ending this condition of national exclusion.” For although American history had had many Nativist movements, all of them, he emphasized, violated “the spirit expressed in the Declaration of Independence that ‘all men are created equal.’” A Nation of Immigrants is President Kennedy’s reiteration of “the American ideal” and it is stated primarily in terms of the individual. “We have always believed it possible for men and women,” he said, “who start at the bottom to rise as far as their talent and energy allow. Neither race nor creed nor place of birth should affect their chances.”69 A prominent American constitutional scholar was even more emphatic. “I find it gratifying,” he wrote, “that we live under a constitution to which the concept of citizenship matters very little.”70

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The most innovative, unorthodox, and challenging ideas about citizenship are not American but Canadian. To the extent that the United States has a recognizably “American” theory of citizenship, it is most commonly known as the “colour-blind constitution” or derivative of it. It is largely the by-product of post-slavery America and it deals as much with “man as man” as with “man as citizen.” It was first articulated in 1896 by Justice Harlan in his dissenting opinion in Plessy v. Ferguson. He noted that “the white race” regarded itself as “the dominant race” in America. What he objected to was the continued legal segregation of the races well after the Civil War had abolished the slavery of Black people; and he insisted there was no “ruling class of citizens” in America. “Our constitution is color-blind, and neither knows nor tolerates classes among citizens.” He also said that “the law regards man as man, and takes no account of his surroundings or his color when his civil rights as guaranteed by the supreme law are involved.”71 Canada is different, partly because Confederation has had to take account of cultural diversity and competing nationalisms. When French-speaking Quebecers were asked about Confederation in 1867, they wanted to know what guarantees it provided for their language, religion, and nationality.72 Many Canadian Aboriginals ask the same kind of identity questions. In their view, Confederation can be just only if it is an equal partnership that respects their identity as First Nations. There is also multicultural Canada, which rejects uniformity. Whatever equality and citizenship mean in contemporary Canada, they do not mean the “colour-blind” constitution or constitutional uniformity. Accommodating diversity is an essential part of the Canadian identity. But no country can ignore the requirement that its members must have some kind of common life together or some understanding of belonging, if it is to avoid fragmentation and disintegration. That was the problem Trudeau struggled with, beginning with his disputes with Lévesque and Quebec nationalists and culminating in his defence of the Charter of Rights as the essential pillar of Canadian unity. In his view, the Charlottetown Accord was even worse than the Meech Lake Accord. Its “Canada clause” specified that Quebec was a distinct society within Canada; that the Aboriginal peoples of Canada were the first peoples and their governments constituted one of the three orders of government in Canada; and that the provinces were both equal and different. Among Trudeau’s criticisms of the Accord were that, unlike the Charter of Rights, it privileged collective rights over

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individual rights, created a hierarchy of rights, and would have a crippling effect on Canada. He said that Quebec nationalists had unending demands that would lead to the disintegration of Canada unless they were stopped. He also warned Canadians that the institutionalization of collective rights pitted groups against one another, and the result might eventually be a civil war. The Charlottetown Accord, he said, was a mess that deserved a big “n o ” because it was incompatible with national unity and the common Canadian citizenship envisioned by the Charter of Rights.73 What Trudeau sketched was the Charlottetown Accord interpreted (by him) as a worst-case scenario in Canadian diversity. In the same year, the Assembly of First Nations published To the Source, as part of its contribution to the debate. It provided a deeply pluralistic interpretation of Aboriginal self-government and the future of Canada that had some of the hallmarks of a best-case scenario. The Report said that Aboriginal peoples were crying for renewal, for the casting off of the yoke of oppression, colonization, and dependency. Before the arrival of Europeans, Aboriginal peoples were “in balance with themselves, each other, nature, and the Creator.” To accomplish the mission of renewal Aboriginals needed self-government, which meant funding and control for education, family services, language preservation, and Native justice. Self-government went hand-in-hand with the reinvigoration of Native ways, and was an inherent right rooted in Aboriginal occupation of the land from time immemorial. Native ways rejected the materialism of white society and made the Charter of Rights unnecessary. As the original environmentalists, Aboriginal nations also had much to teach white society about harmony with the land. Europeans had no right to settle in large parts of Canada; yet Aboriginals had always been willing to share, if compensation was provided and their rights were respected. Nor did they want Canada (and Quebec) to disintegrate. They believed in an equal partnership similar to treaty federalism that allowed the three nations to travel in harmony and live “side-by-side as the best of neighbours and (we hope) as good friends.”74 In this prominent best-case scenario of Aboriginal nationalism, Canada is conceptualized in terms of ideal Aboriginal communalism, and becomes a country not of citizens or persons, but of neighbours. What is missing from both of the above scenarios are distinctive dimensions of Canadian citizenship and the “middle-ground” of Canadian constitutionalism. Each scenario is a half-truth. Trudeau’s

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critique of the Charlottetown Accord highlights the dangers of fragmentation and disintegration that Canadians must grapple with, but fails to acknowledge adequately that a viable Canadian citizenship cannot be assimilationist. Ideal Aboriginal communalism is important as an expression of the inherent dignity of the Aboriginal way of life and as an affirmation that Canada is not a melting pot. But Aboriginal nationalism becomes a limiting half-truth if the best-case scenario of Aboriginal belonging becomes identified too exclusively with Aboriginal communalism. Occasionally, the authors of To the Source recognized that something more was required. “Native youth, like young people everywhere,” they write, “want the best of both worlds; the formal training to succeed in the white world, and education in their own language, culture, and traditions.”75 In The Unjust Society, Harold Cardinal went a significant step further. “Once our rights are guaranteed,” he wrote, “there will be less need for our people to emphasize their sovereignty.” He speculated that the day might come when Aboriginals and other Canadians could identify “common purposes” and a “true citizenship” might develop.76 Aboriginal citizenship as a “true citizenship” is not a common theme, but some Indigenous scholars and some Canadian theorists recognize its importance and complexity. About three years before the White Paper, the Hawthorn Report cautioned against a policy based on formal equality and recommended that Indians should be regarded as “citizens plus.” For in addition to the normal rights and duties of citizenship they also possessed certain rights by virtue of being Indians. They were here first; but what should have been a privilege had been turned into a millstone. Among its recommendations were recognition of Aboriginal self-government as equivalent to municipal status and the establishment of an Indian Progress Agency to help improve the socio-economic status of the Indian people.77 The Report’s impact was limited, but the idea of “citizens plus” was used again, more than thirty years later, to question one of the main recommendations of the Royal Commission on Aboriginal Peoples. “The rcap reiteration of nation-to-nation as the lens for viewing Aboriginal/ non-Aboriginal relations,” Alan Cairns wrote, “inevitably conjures up images of a mini-international system and weakens the idea of common citizenship.”78 Cairns emphasized that Aboriginals were not the counterparts of the Old Order Amish; that many Aboriginal lived in cities; and the sheer number of Aboriginal nations with very limited resources in all but a few cases demonstrated that Aboriginal

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parallelism and the nation-to-nation approach were unworkable models for the Canadian state. Bonds of empathy, Cairns suggested, needed to be strengthened, while profound civic distance between Aboriginals and other Canadians should be avoided. In these circumstances, the “citizens plus” approach, he suggested, retained its validity. Unlike “citizens plus,” Aboriginal perspectives on citizenship begin with the land. Delgam Uukw, a Gitksan Chief said: “The land, the plants, the animals, and the people all have spirit – they must all be shown respect. That is the basis of our law.”79 Aboriginals agree on the pivotal role of the spirit in the land, but do not agree on the significance of participation in Canadian affairs. This disagreement is the starting point of John Borrows’s revisionist essay “‘Landed’ Citizenship: An Indigenous Declaration of Interdependence.” Borrows praises Harold Cardinal’s The Unjust Society and the self-government recommendations of the Royal Commission on Aboriginal Peoples, but he also believes that Aboriginals need a new story, new solutions. “We need,” he writes, “a transformative message in a reactionary time.” The new story is partly reflected in the life of Borrows’s grandfather, who loved the land and returned to it, but did not live his whole life on the reserve, had many jobs, and married a non-­ Aboriginal Californian. Various sites of power in Canada must be permeated with Aboriginal people, institutions, and ideologies. We need, Borrows suggests, an Aboriginal prime minister, a Supreme Court judge, and numerous c e o s. He rejects measured separatism because it separates Aboriginals from places they hold dear and makes them even more vulnerable to external manipulation. Equally, Borrows rejects assimilation because he believes in the importance of the spirit in the land and the Aboriginal worldview. Aboriginal values and traditions, he suggests, could help to reconfigure Canada for the benefit all Canadians. “Canadian citizenship under Aboriginal influence may expand to recognize the land as party to Confederation in its own right.”80 Where Borrows’s “‘landed’ citizenship” and Cairns’s “citizens plus” intersect is with respect to the question of belonging and the problem of social cohesion. Belonging is also an important issue for American Indians, but it becomes entangled with social cohesion only in Canada. Since 1865, no American state or region has seriously threatened secession and the United State has become in theory and practice an “indestructible union.”81 Canada is not and never has been “an

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indestructible union,” and the difference matters not only for Quebec or the regions or multicultural groups, but also for Aboriginals. For Borrows, the issue that takes precedence over all other issues, including social cohesion and Canadian unity, is the spirit in the land. Aboriginals, he believes, must develop new ways of “preserving and extending citizenship with the land,” while retaining control of Aboriginal affairs. But he also notes that suspicion and hostility sometimes erupt between Aboriginal and non-Aboriginal Canadians, and believes that “any relevant conception of citizenship must address the issues of cohesion, unity, and peace.” What complicates the issue even more, he notes, is that “Canada is somewhat unique among Western nations in constitutionally embracing a theory of differentiated citizenship.”82 For Cairns, differentiated citizenship becomes untenable when it erodes or ignores the bonds of empathy on which the rights of minorities and the well-being of other Canadians ultimately depend. This is the case, Cairns believes, with the nation-to-nation theory of Canadian Aboriginals and the sovereignty-association theory of Quebec nationalists. Borrows endorses Cairns’s concern about empathy but not “citizens plus” or its implications for Canadian unity. Instead, he reflects on an insight of Kymlicka and Norman and believes, like them, that the relationship between the protection of minority rights and national unity based on citizenship is not necessarily a zero-sum trade-off.83 And he concludes that “the stronger rooting of all people’s rights, associations, and identities” within Canada “is a necessary, if not sufficient condition for the enjoyment of stronger bonds of national unity.”84 Behind the theorizing of Borrows and Cairns on Aboriginal citizenship is another and more comprehensive theory of Canadian citizenship with deep roots in Confederation. It was outlined by Cartier and depends on a distinctly Canadian scheme of federalism, minority rights, and political nationality. Part of its importance is that it both responded to prominent criticisms of Confederation and compelled Macdonald to recast some of his ideas. It also articulated a vision of Canada’s destiny different from the novus ordo seclorum of the American republic. In “The Making of a Canadian Political Citizenship,” Carty and Ward write: “George-Étienne Cartier’s call for a new political nationality is perhaps the most cited phrase in the Confederation Debates.” They note that “Cartier sought a limited, political nationality for the new dominion” and raised the fundamental issue of membership in a way that differed from the republican

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theories of the American and French Revolutions. What Cartier envisioned was a new kind of political nationality in a new kind of federation that united Canadians but rejected the individualistic and assimilationist assumptions of republican theory. While Carty and Ward highlight Cartier’s continuing relevance even in contemporary Canada, their assessment is mixed. They speculate that his ideas may have operated as a “self-fulfilling prophecy” that helped to perpetuate deep conflicts about the essence of Canadianness at the heart of the political system. “Canadians divide,” they write, “between anglophone and francophone, old and new, immigrant and aboriginal, partly because there is … no agreement on what constitutes a Canadian.” But they also believe that “Cartier’s 1865 remonstration should command our attention” because it expressed a puzzling insight about Canada that has not diminished with the passage of time.85 Cartier’s puzzling insight is his attempt to express the middle ground of Confederation. Missing from Trudeau’s 1969 Speech on Indian Policy and his critique of the Charlottetown Accord is a similar engagement with the middle ground of Canadian constitutionalism. It is also absent from those conceptions of Aboriginal rights that, like the sovereignty association model of Quebec nationalists, envision Canada as inhabited by groups of strangers who happen to be neighbours and share nothing as citizens. Canada as a country of strangers with a diminishing sense of its cohesion or destiny is not likely to take Aboriginal rights very seriously or be in a position to respond to Aboriginal claims in the way that, say, the US Presidential Message did in 1970. Though frequently neglected, the paradoxical middle ground of Canadian constitutionalism is also irrepressible and protean. One contemporary manifestation of it, partly situated in efforts to reconcile Aboriginal rights and Crown sovereignty as interpreted by the Supreme Court, occurs in Brian Slattery’s “First Nations and the Constitution.” In this essay and later studies, Slattery sketches “a new account of the Constitution as a whole.” The Canadian constitution, he suggests, “is animated by a distinctive doctrine of constitutional trust, which contrasts with … the principle of parliamentary sovereignty prevailing in the United Kingdom, and … American ideas of popular sovereignty and individual rights.” While this doctrine of trust, he explains, has affinities with Aboriginal themes, and resemble some Lockean ideas on trust, it is shaped by the communitarian and pluralist forces of Canadian history. “The word ‘trust’ aptly conveys the outlook,” he

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concludes, “that must increasingly come to inform relations among the various peoples of Canada, if we are to share a future together.”86 Slattery’s emphasis on Canadian pluralism, Aboriginality, and trust is not identical to Cartier’s new political nationality within a new federalism, but they both attempt to identify the often neglected middle ground of Canadian constitutionalism and the foundation for a distinctive understanding of Canadian citizenship.

T h e S p ir it o f t h e Cons ti tuti on a n d A b o r ig in a l S e l f-Government In a study of Indigenous multilevel governance in Canada and the United States, Martin Papillon notes that important changes have occurred in both countries, but they have occurred, for the most part, “less at the constitutional level … than at the level of everyday policy making.” For example, he notes that in Canada more than 80 per cent of the budget of the Department of Indian Affairs is now managed by local Indigenous authorities. This change and other policy changes that affect the everyday lives of Canadian and American Aboriginals have taken place as a result of relatively simple changes in administrative practice or in legislation. But he also emphasizes that constitutions matter, and notes that American Indian tribes are extra-constitutional entities with residual sovereignty, whereas Canada’s First Nations “engage in negotiations to have their jurisdictional rights recognized within the parameters of the Canadian constitution, as an addition to existing authorities.”87 From the perspective of constitutional theory, this difference in constitutional standing reveals a great deal not only about various policy strategies for selfgovernment, but also about the contrasting spirit of Canadian and American constitutionalism. One illustration of the difference in underlying constitutional philosophy is the classic American essay on “Indian Self-Government” by Felix Cohen, published in 1949. Cohen was “a distinguished legal philosopher, battler for Indian rights, and author of the Handbook of Federal Indian Law.”88 He was significantly ahead of his time in his rejection of racist assumptions and respect for the Indian way of life; moreover his key arguments for Indian self-government were based on leading principles of American constitutionalism and America’s libertarian conception of liberalism. “The Federal Government,” he wrote, “cannot give self-government to an Indian

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community. All it can really do … is to get out of the way.” Another argument was about Indian tribes and sovereignty. “There is nothing wrong about having a state within a state; that, in fact is the whole business of American federalism and tolerance.” He went on to explain that it is the right of people, including Indians, to segregate themselves and mix with their own kind because the right to be different is one of the most valuable parts of “the American way of life.” He quoted Justice Holmes’s famous dictum about freedom for the thought we hate and used it to justify Indian self-government. “It is decisions that we loathe … that test our belief in tribal self-government, just as religious opinions that we loathe … test our belief in religious tolerance.” To the paternalist who insisted that Indians lacked the wisdom to govern themselves, he replied: “the basic principle of American liberty is distrust of expert rulers, and recognition … that power corrupts.” His final argument was that, for Americans, “the Indian tribe is the miners’ canary” and when it drooped “we know that the poison gases of intolerance threatened all the other minorities in our land.”89 What Cohen’s classic essay attempted to show, and what the President’s 1970 Message implicitly suggested, was that Americans could meet a large part of the challenge of Indian self-government by embracing the true spirit of America’s liberal and libertarian constitutionalism. In this way, they would reject untenable racist and colonialist assumptions. Canada is different in at least one important way. Canadian constitutionalism is more contested and, in any case, Aboriginal self-government presents a different kind of constitutional challenge. Unlike the American Indian, Canadian Aboriginals are not just seeking to create workable islands of Indianness; they are also attempting to reshape the constitutional order and even the meaning of Canadian constitutionalism. What is noteworthy, however, about many of the efforts to reshape the Canadian constitution, especially after the failure of the Trudeau government’s White Paper and the reaction to it, is the large role that federalism and theorizing about federalism plays in them. “Treaty federalism,” the “two-row wampum,” “partners in Confederation,” and “the Aboriginal third order of government” are all indications that innovative theorizing about federalism is as important for the spirit of Canadian constitutionalism as innovative ideas about liberty are for American constitutionalism. New ideas about federalism were important in 1867, resurfaced in provincial demands for the inclusion of a notwithstanding clause in

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the Charter, and constantly reappear in discussions of Quebec’s place in Canada and the accommodation of First Nations. There is also a central theme of Canadian federalism that, though sometimes neglected, deserves greater recognition. A version of it occurs and reoccurs in decisions of the Supreme Court as it attempts to reconcile Crown sovereignty with Aboriginal title and interests. “As Delgamuuku explains,” the Chief Justice wrote in the Tsilhqot’in Nation decision, “the process of reconciling Aboriginal interests with the broader interests of society as a whole is the raison d’être of the principle of justification. Aboriginals and non-Aboriginals are ‘all here to stay’ and must of necessity move forward in a process of reconciliation.”90 The theme of American federalism, like American constitutionalism, is freedom.91 The spirit of Canadian federalism is different, and like Confederation requires a different ethic of constitutionalism.

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9 The Arduous Destiny of the Peaceable Kingdom George Grant, Alan Cairns, and the Meaning of the Canadian Constitutional Crisis

Id e n t it y, C r is is , a nd Des ti ny No one reflected more on the Canadian identity or worried more about Canada’s future than George Grant. His most famous book Lament for a Nation, first published in 1965 and reprinted many times afterwards, is possibly the most influential and ominous book ever written about Canada’s destiny. In it, Grant warned of the imminent and final defeat of Canadian nationalism, asked Canadians to remember why Canada had been founded, and pleaded with them not to allow their country “to pass away as in a dream.”1 Much of what Grant wrote afterwards assumed that the Canadian experiment had failed, that Canada had become a junior partner in the American empire, and that his own mission was to expose for Canadians the darker side of the American way of life that they increasingly imitated. But Grant is a complex figure and so are his meditations on Canada. His work is filled with the language of fate, yet he insisted that he was no determinist; and despite his forebodings about Canada’s future, he rebelled against all attempts to characterize his own orientation as that of a pessimist. Nor did he ever entirely cease to reflect on the Canada he loved or on what he, along with many others, called the Canadian constitutional crisis. More than a decade after the publication of Lament for a Nation, Grant still spoke of “our constitutional crisis” and continued to insist that one of the most important questions for Canadians was how to retain “some independence while sharing this continent with the most powerful modern empire.”2

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Grant invariably coupled that question with another, namely “how to maintain workable relations between the French and Englishspeaking communities,” and insisted that these “two very complex questions can only be thought about clearly if they are thought about together.”3 Grant wrote these words in 1977, and did not live to see the failure of the Meech Lake and Charlottetown Constitutional Accords, which if anything deepened existing and widespread concerns about Canada’s future. Moreover, in 1977, the same year that Grant wrote “On National Unity,” Alan Cairns outlined his seminal analysis of “The Other Crisis of Canadian Federalism.” Unlike Grant, Cairns focused neither on Canada’s relation to the American empire or on the French-English question. His concern was with “a crisis of recent vintage … the last two decades.” It was, he said, a “crisis of big governments” engaged in self-defeating competition and “a crisis to which federalism has contributed.” What Cairns concluded was that “even if we leave the Quebecois nationalist pressures aside … the grounds for optimism are slim.”4 In subsequent studies published in the 1980s and 1990s – including his essays collected in Disruptions and his reflections on “Looking into the Abyss” – Cairns examined other aspects of the Canadian constitutional crisis that Grant either did not live to witness or that escaped his attention. Taken together, the writings of Grant and Cairns provide an incisive and panoramic view of the Canadian constitutional crisis as it unfolded from the early 1960s to the late 1990s. No one can be certain that the crisis has finally run its course. But forty years or so is a long time, and a significant basis for reflection in a country that had its sesquicentennial in 2017. Other countries have also experienced crises of one kind or another, and none more so than the United States. “It has often been remarked,” a noted historian wrote, “that Americans are inclined to expect each crisis to be final, to think each must be solved by a permanently decisive conflict.” Tuveson goes on to say: “Nothing could be more characteristic of an apocalyptic attitude.”5 Moreover, in the United States, such an apocalyptic attitude is often accompanied by a quasi-religious “eschatology” of ultimate national purpose or a narrative about the overriding goal or end of history, in which America is the second Israel or novus ordo seclorum or the redeemer nation and the American people struggle to fulfill their appointed destiny of creating the promised land here on earth.6 Many Americans are also acutely aware, as Lincoln insisted during the Civil War, that “the Almighty has His own purposes,” a fact that enormously complicates

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America’s mission.7 For those who believe that, like the United States, Canada also has a destiny, a forty-year crisis should reveal something about it – or at the least something about the Canadian identity and Canada’s constitutional faith.

C a n t h e C e n t r e Hold? For Canadians, few subjects are more important, as Grant repeatedly observed, than America’s destiny and the way it impacts on them. Throughout their history, Americans have often combined a secular concept of progress and world historic mission with a Christian Protestant notion of redemption rooted in the Biblical promise of the Second Coming of Christ.8 Woodrow Wilson combined both ideas in speeches delivered during the First World War, and the same combination runs through John Adams’s “Dissertation on the Canon and Feudal Law,” published in 1765. “I always consider the settlement of America,” Adams wrote, “with reverence and wonder, as the opening of a grand scene and design of Providence for the illumination of the ignorant and the emancipation of the slavish part of mankind.”9 What Adams outlined was an American eschatology with Biblical roots. Providence and progress have not always been kind to their nation, but Americans constantly reaffirm their faith in them as beneficent, transformative, and future-oriented powers. In contrast, Canadians for much of their history valued tradition and monarchical institutions, and rejected George Washington’s invitation to join the American revolutionary war. In the Confederation debates, George Cartier recalled how Washington had urged French Canadians to choose “the blessings of liberty” and to reject their leaders for standing in the way. But French Canadians, Cartier said, owed much to the conservatism of their clergy and understood that “with the disappearance of British power, they too would have disappeared as French Canadians.”10 That Canada was never intended to be a copy of the American republic or duplicate its destiny is evident not just from Cartier’s speech, or from Washington’s failure to win over French Canadians, but also from the arrival and settlement in Canada of American Tories who rejected the revolutionary cause and wished to retain their allegiance to the British Crown. In the Confederation debates, it was Macdonald who came closest to echoing their complex aspirations. “We all feel,” Macdonald insisted, “the advantages we derive from our connection with England”; he went on to say that Confederation

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should not be regarded as the first step towards independence from the Mother Country. “England,” he explained, “will have in us a friendly nation – a subordinate but still a powerful people – to stand by her in North America in peace or in war.”11 When George Grant looked back on Canada’s origins from the standpoint of the 1950s and 1960s and 1970s, he focused primarily on the French Canadian Catholics who rejected Washington’s American dream, and the United Empire Loyalists who preferred the Elizabethan cosmology of Richard Hooker to the revolutionary politics of John Locke.12 Moreover, even in his submission to the Massey Commission on the Arts and Letters, written more than a decade before Lament for a Nation, traces of Grant’s understanding of Canada’s origins and destiny are evident. “The question,” he told the Commissioners, “is simply whether a society gains more from its M.I.T.s [Massachusetts Institute of Technology] or from its Institutes of Medieval Studies.”13 At the centre of Lament for a Nation are a number of beliefs about Canada that Grant held so firmly as to regard them as self-evident. “Growing up in Ontario, the generation of the 1920’s took it for granted,” he wrote, “that they belonged to a nation. The character of the country was self-evident.” Having asserted the self-evident character of Canadian nationhood, Grant had little difficulty describing its content and contours. “To be a Canadian,” he explained, “was to be a unique species of North American. Such alternatives as F.H. Underhill’s – ‘Stop being British if you want to be a nationalist’ – seemed obviously ridiculous.” Moreover, Grant believed that there was deep insight in the self-evident beliefs of his generation and it was “the wisdom of Sir John A. Macdonald who saw plainly … that the only threat to nationalism was from the South.” Macdonald’s wisdom applied equally to French Canadians because they too had wanted to build “a more ordered and stable society than the liberal experiment in the United States.” Elsewhere in the book, Grant insisted that the Britishness of Canada was a tradition of conservatism that stood in firm opposition to Jeffersonian liberalism. It affirmed that society required a higher “degree of law,” a greater “respect for a public conception of virtue,” and a much wider authority “to control the individual than was recognized in the libertarian ideas of the American constitution.”14 Grant attached so much importance to this tradition of conservatism that he pinned Canada’s fate on it. Clearly, his commitment was not to the American libertarian neo-conservativism that many Canadian conservatives embraced during the 1980s North American Free Trade debate.

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In Lament for a Nation, as in several of Grant’s other writings, the politician who came closest to understanding the importance of this older tradition of conservatism for the Canadian identity is John Diefenbaker. Grant analyzed Diefenbaker’s policies as prime minister; advised him on Canada’s constitutional crisis when he was in opposition; and published a moving tribute shortly after his death in 1979. In it, Grant recalled that Diefenbaker was an honest politician in an age when much was false; and although frequently criticized for being out of date, he appeared so only to those who worshipped at the altar of progress, evolution, and technological innovation. Grant also praised Diefenbaker for defending Canada’s sovereignty. When President Kennedy insisted, during his visit to Ottawa, that Canada must not sell wheat to China, Diefenbaker replied: “You aren’t in Massachusetts now Mr President.” The first fact of Diefenbaker’s greatness, Grant insisted, was that he reached that part of the population that feels excluded from politics; “he was a democrat not only in theory but in his soul.” Moreover, his loyalties were not defined in the context of calculation; and he held firmly to certain principles that could never be out of date. Diefenbaker loved his country and many ordinary Canadians loved him. But Grant also believed that Diefenbaker was one of Canada’s flawed heroes and misunderstood several matters of vital importance. “Above all his appalling choice of French colleagues suggested that he did not know the first principle of Canadian politics.”15 Nor had he been able to formulate feasible policies capable of sustaining Canadian nationalism in a technological era. But who, Granted added, has been able to formulate such policies? A decade earlier, Grant had attempted a preliminary identification of such policies in a memorandum written at Diefenbaker’s request. Entitled “Notes on the Constitutional Question” and dated September 1965, its overriding concern was with “the Crisis in Confederation.” Canada, Grant wrote, will soon celebrate its 100th anniversary as a nation. “Shall that centennial … be a time for dedication to new tasks and new greatness? Or rather will it be a time of drifting and uncertainty?” No one could deny, Grant continued, that during the last two and a half years “uncertainty about our national destiny has been felt throughout the land.” Moreover, Grant attributed “the chief cause of this faltering [to] the vacuum [in] the federal government at Ottawa.” The liberal government was drifting aimlessly and “no nation can long exist without a national government which knows where it

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is going.” The rest of the memorandum deals with topics and questions connected with the emerging crisis. The Conservative party, Grant said, is the party of “one Canada; but one Canada which rejoices in its diversity.” As for federalism, it had been explained long ago by D’Arcy McGee; however, recently federal-provincial relations had taken on the sad appearance, Grant explained, “of negotiations between foreign powers.” A National Constitutional Convention was needed. Its purpose would be to adjust Canada’s federal structure to “the new technological revolution” and to meet the “just aspirations of the people of Quebec.” But the federal government, Grant insisted, “cannot surrender those powers necessary to the preservation and strengthening of this northern nation” or relinquish its “responsibility for the welfare of all Canadians.”16 Lament for a Nation also appeared 1965. Although nothing in it necessarily contradicts what Grant says in his “Notes” to Diefenbaker, its mood is different and its premonitions about Canada’s future are darker. The immediate objective of Lament for a Nation is to explain why “the wealthy and the clever” were so united and unrelenting in their attacks on Diefenbaker, but its deeper purpose is to unravel Canada’s destiny. In this regard, its great and abiding theme is the fate of any particularity in the technological age.17 In letters written shortly before its publication, Grant noted that “it starts with a lot of factual information about Canadian history, but ends with a logic, which is deeper, about the age of progress.” In another letter, he says: “I have spent the last months writing a long piece … which is just about Canada becoming part of the universal and homogeneous state.”18 Grant kept his promise, and even provided a syllogistic proof for Canada’s disappearance in the published text. “The argument that Canada, a local culture, must disappear,” he wrote, “can be stated in three steps.” First, men and women everywhere “move ineluctably toward membership in the universal and homogenous state.” Second, Canadians live next to the United States, “a society that is the heart of modernity.” Third, virtually all Canadians believe that modernity is good, “so nothing essential distinguishes Canadians from Americans.” For those who believed in the original dream of Canada, all that remains, Grant seems to conclude, is to lament the passing of their country and to hope that the universal state does not turn out to be a universal tyranny.19 In the introduction to the second edition, published in 1970, Grant said that Lament for a Nation was written “too much from anger and

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too little from irony.” Certainly, it would be a great irony if a universal and homogeneous state turned out be a miserable and grinding tyranny as envisioned by ancient philosophers, rather than the prosperous and peace-loving utopia imagined by enthusiasts of the age of progress.20 Grant also used the occasion to respond to criticisms. “A serious criticism,” he acknowledged, “has been that to write in terms of inevitability (call it if you will fate) is to encourage the flaccid will which excuses the sin of despair in the name of necessity.” Grant replied, in part, that at a time when so many politicians subscribe to the ignoble illusion of technological progressivism and endorse personal self-assertion, the most important responsibility of a writer is to ridicule their beliefs. “In an age when the alternatives often seem to be between planetary destruction and planetary tyranny,” he explained, “protecting romantic hopes of Canadian nationalism is a secondary responsibility.” A related and often-heard criticism was the accusation of pessimism. Grant regarded this criticism as based on a misunderstanding of the words “optimistic” and “pessimistic,” which first came into philosophical prominence around the time of Voltaire’s criticism of Gottfried Wilhelm Leibniz’s “best of all possible worlds” theory after the Lisbon Earthquake. Grant also said that it would be “the height of pessimism” to believe either that “our society could go on in its present directions without bringing down upon itself catastrophes” or to suppose that catastrophes do not in themselves “bring forth human excellence.”21 Grant never completely gave up on the romantic hopes of Canadian nationalism or the humane values of the Canadian identity, even as he increasingly worried about Canada’s destiny and increasingly believed, as in Yeats’s poem “The Second Coming,” that a “rough beast … slouches towards Bethlehem.”22

T h in g s F a l l Apart When Alan Cairns’s “Looking into the Abyss” appeared in 1997, more than thirty years had passed since the publication of Grant’s Lament for a Nation. They were years of almost continuous political self-examination and recurring constitutional struggles. Like Grant, Cairns took a relatively bleak view of Canada’s future in his C.D. Howe commentary and in some of his other writings, although his reasons for doing so were different.23 Grant’s overriding concern was with the American empire and its corrosive effects on Canadian identity. “The central problem for nationalism in English-speaking

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Canada,” he wrote, “has always been: in what ways and for what reasons do we have the power and the desire to maintain some independence of the American empire?”24 In Cairns’s writings, the focus has shifted towards Canada’s internal political dynamics, with the American Empire relegated to the background. The shift is already apparent in Cairns’s essay on “Political Science in Canada and the Americanization Issue.” In it, Cairns cautions against intellectual isolationism, but ultimately concludes that political science in Canada requires a local root and must not simply adopt American models of governance. “Constant attention to Canadian history and Canadian society,” he writes, “is necessary if theory is to be adapted to or developed in Canada. The study of Canada will be badly done to the extent that it is unduly influenced by … neighbouring … scholars deeply immersed in their own society.”25 Cairns repeatedly applied these methodological injunctions, and discovered a Canada that was both decidedly un-American in its constitutional politics and that had little grounds for the kind of optimism frequently associated with American constitutionalism. For Cairns, the discovery of the darker side of Canadian constitutional politics is marked by the publication in 1977 of his essay “The Other Crisis of Canadian Federalism.” Before then, Cairns expressed skepticism about the idea of a Canadian constitutional crisis. Thus in his essay “Alternative Styles in the Study of Canadian Politics,” published in 1974, he wrote: “The time has come to provide a decent burial of the myth that Canada is an especially difficult country to govern, a cliché of Canadian politics given new life by the pessimism of the past decade.” He goes on to say: “Frank MacKinnon is correct in observing that ‘almost all recent books on Canada are fashionably morbid, despite the fact that, by world standards, Canada does not know what real political trouble is.’”26 In “The Living Canadian Constitution,” Cairns arrived at a similar conclusion, although his focus was different and his main purpose was to challenge the belief that Canada required a new constitution. Published in 1970, the essay decisively rejected the view that the Canadian constitution was unsuited to contemporary conditions because it was adopted a century earlier and designed for a different world. “Crucial to this widespread position,” he wrote, “is the belief that the constitution is by and large what the Framers bequeath to us a century ago.” But such a belief, he contended, is fallacious, because the Canadian constitution is an “evolving institution which has responded to pressures and flexibly

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accommodated itself to a variety of needs and changing demands.” The argument based on age, he argued, was “largely a fraudulent consideration”; and even Quebec’s demand for much greater autonomy, he insisted, did not require a break with the past or undermine the viability of Canada’s living constitution.27 Underpinning “The Living Canadian Constitution” is a complex continuity thesis; a complex discontinuity thesis underpins “The Other Crisis of Canadian Federalism.” Moreover, “The Other Crisis” builds on “A Different Perspective on Canadian Federalism,” written with Ed Black; and complements “The Governments and Societies of Canadian Federalism.” In “A Different Perspective,” published in 1966, Cairns and Black criticize traditional interpretations of Canadian federalism on the ground that all of them neglect what they call province-building. “Since 1867,” Cairns and Black write, “Canadians have engaged not only in state-building but in province-building as well.” They regard province-building as providing a new justification for federalism in Canada, with the proviso that “centrifugal forces in Quebec and British Columbia cannot be offset by the centripetal forces in Ontario.”28 “Governments and Societies,” published in 1977, unfolds the theme of province-building and adds significant new dimensions to it. In particular, it couples province-building with “political federalism,” which Cairns describes as “a peculiar Canadian version of the American separation of powers,” except that the Canadian version is much more difficult to operate because it also involves governments “conscious of their historic position, jealous of their prerogatives, and aggressively enterprising in the performance of their managerial responsibilities for their societies.”29 What transforms “political federalism” into “the other crisis” is the failure of “the working constitution of Canadian federalism … [to] control and channel the activities of government in order to minimize their selfdefeating competition with each other.” Cairns describes “the other crisis” as of recent vintage and produced by federalism itself. It is a crisis, he continues, in which the existing constitution “awaits its eventual allocation to the dustbin of history” and “the grounds for optimism are slim.”30 “The Politics of Constitutional Conservatism” and “The Canadian Constitutional Experiment” were published in 1983 and 1984 respectively; in them, Cairns analyzed “the recent tumultuous struggles” that had as their outcome the Constitution Act, 1982.31 The revised constitution, Cairns wrote, represented an “uneasy peace” in “the

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battlefield of intergovernmental warfare.”32 Moreover, much of the old constitution had survived, he continued, not because it was held in exalted reverence or because of the logical consistency of its parts. Rather, various special interests had adopted it and used it to resist unwanted changes. As for the revised constitution, it “speaks with divergent voices about the nature of Canada.” The whole constitutional exercise had been a struggle “for possession of our souls”; it had aimed at “not only a practical but a symbolic reconstruction of the Canadian constitutional system.” What it had largely produced, however, was a divided soul. The two main components of the revised constitution were the amending formula and the Charter of Rights, which pulled in different directions. “The constitutional settlement,” Cairns wrote, “that combines a nationalizing Charter and a provincializing amending formula is a contradiction posing as a compromise.” As for the Charter itself, Trudeau had spoken of it as promoting national unity and a common Canadian identity. “The Charter,” Cairns replied, “will not be an unmixed blessing” and might even “contribute to an aggressive rights-conscious individualism hostile to fraternity and solidarity.”33 Cairns believed that the revised constitution deserved “a restrained half cheer,” particularly in a world in which constitutional utopias had no place.34 Charter skeptics went further. Some of them denied that the newly entrenched declaration of constitutional rights would have any effect at all. Others complained that it would do nothing more than transfer decision-making power from democratically elected and responsible legislatures to unelected and unaccountable judges. Still others insisted that the Charter of Rights represented an Americanization of Canada and would bring with it an inevitable centralization of power and a decline of citizen participation. The argument for complete ineffectiveness was based on comparison with the Canadian Bill of Rights, a federal statute enacted in 1960. Since the earlier rights enactment had little impact on the constitutional landscape, it was contended that a similar fate awaited the new Charter.35 Most Canadians, however, expected considerably more from the Charter and many of them welcomed the Trudeau government’s designation of it as the People’s Package. Charter skeptics regarded such a designation as politically naive and, largely based on their interpretation of American experience, insisted that its real effect would be to politicize judges and to promote government by judiciary in Canada.36 Just as prominent, and also primarily based on the interpretation of American

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experience, was the concern that the Charter implicitly appealed to an atomistic conception of the individual and threatened to turn Canada into a society in which rights would trump the general good and citizen litigiousness would displace democratic deliberativeness.37 Charter skeptics doubted that the new rights document deserved even the half-cheer that Cairns gave it. The Meech Lake Constitutional Accord of 1987 and its failure three years later provided a complex context in which to assess competing claims about the Charter. Among those opposed to the Accord was Trudeau, who insisted that the Accord fragmented Canada, undermined the equality of Canadians guaranteed by the Charter, and turned Quebec into a closed and reactionary society by granting it status as a “distinct society.”38 In “Citizens (Outsiders) and Governments (Insiders) in Constitution-Making,” published in 1988, Cairns also assessed the Accord, explored the growing opposition to its ratification, and drew attention to the development of what he called “the citizen’s constitution.” The Accord, he said, had been an affair of governments and had been produced by the old process of executive federalism, in which governments secretly negotiated among themselves and quietly determined the future of the country. But by proceeding in this way, he insisted, the governments of Canadian federalism had significantly underestimated the impact of the Charter on the rights consciousness of the groups that strongly identified with it. These Charter citizens – women, gays, the handicapped, and others – not only felt excluded by the process that produced the Accord, they also strongly objected to its content on the ground that it established a pecking order of rights that diminished their status. What the growing opposition to the Accord demonstrated, Cairns concluded, was that “those who govern us may have to relearn the ancient democratic message that they are the servants of the people.” Moreover Cairns insisted that by agreeing to the Charter the governments of Canadian federalism had “also agreed, perhaps unknowingly, to a challenge to the Meech Lake process … that was born with the Charter.”39 What the eventual defeat of Accord did not signal, however, was the advent of the more harmonious Canada that Trudeau associated with the Charter. “With the death of the Meech Lake Accord,” Charles Taylor wrote shortly afterwards, “something very profound happened in Quebec.” What happened, Taylor went on to say, was that “the 1867 Constitution died morally in Quebec” and it was “necessary to

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create anew.”40 Canadians tried again, but the Charlottetown Constitutional Accord of 1992 also failed, despite its impressive democratic credentials. In the same year, Cairns published Charter versus Federalism, in which he reiterated some of the earlier lessons of the failed Meech Lake Accord and explored some of the recurring dilemmas of constitutional reform. Cairns’s other objective was to shift attention from federalism and Quebec toward the Charter, on the ground that “the Charter represents a more pronounced change in our constitutional culture than we generally appreciate.” Its unique importance, he contended, derived from the decline of Britishness, the advent of an international human rights regime, and the changing ethnic demography of Canada. Moreover, in the short run at least, the Charter made formal constitutional change “a perilous enterprise.” “There are now,” he explained, “many more players than formerly. Their demands appear to be increasingly incompatible. Potential losers multiply.” As for constitution-makers, Cairns advised them to remember the wise words of Vaclav Havel: “None of us knows all the potentialities that slumber in the spirit of the population, or all the ways in which that population can surprise us when there is the right interplay of events.”41 Four years later, in 1996, Cairns again reflected on “Constitutional Reform” and called it “The God That Failed.” Both the unsuccessful Charlottetown Accord and the nearly successful sovereignty referendum in Quebec were signs that “Canada is on the brink of fracturing.” Canadians had turned to constitutional reform “as the vehicle of [their] salvation,” but it had failed them. Moreover, he believed that the Charlottetown Accord had been almost doomed from the outset because its ratification required “the unanimous agreement of twentyseven separate actors. A success would have been heroic. Defeat was virtually guaranteed.” Nor had Canadians learnt very much from their constitutional failures; they had simply “zigzagged in an unproductive trial and error approach.”42 In “Looking into the Abyss,” published in 1997, Cairns focused on Canada without Quebec, which the outcome of the 1995 Quebec referendum had made a possibility “within the next decade.” In some accounts, such as Lévesque’s An Option for Quebec and Quebec-Canada: A New Deal, the breakup of Canada is described in positive terms. Cairns contended that such accounts were dubious, given “the depth of ignorance” about the future, coupled with the fact that violence during a breakup could not be discounted, as well as the unavailability to Canadians

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of the kind of “velvet divorce” that had taken place in the former Czechoslovakia. As a result, English-speaking Canadians should develop plans for a future without Quebec that focussed on their own survival. He did not know if Canadians outside of Quebec would be able to “survive as a single people with a common government,” and reiterated: “we can neither predict nor control the future.”43 What Cairns superbly portrayed in writings from 1977 to 1997 was Canadian constitutional pluralism caught in a relentless and manysided political crisis.

Re d e e m e r N at io n , L o s t Consti tuti onal W o r l d s , a n d t h e P e aceable Ki ngdom Americans have also experienced a number of constitutional crises that have led them to reflect on their identity and destiny. For many Americans, the United States is the redeemer nation or the country whose destiny is bound up with struggles and crises to achieve freedom and democracy in the modern world. Moreover, in the United States it is precisely in times of crisis that questions about identity and destiny receive their most poignant answers. The Battle Hymn of the Republic, published in 1862, provides a striking illustration. It begins with “Mine Eyes have seen the glory of the coming of the Lord”; and ends by declaring, in part, “as he died to make men holy, let us die to make men free.”44 In an address delivered in Boston, during the Civil War, Goldwin Smith exclaimed that “an English Liberal comes here, not only to watch the unfolding of your destiny, but to read his own … [because] the present civil war is a vast episode in the … irrepressible conflict between Aristocracy and Democracy.”45 Once a Regius Professor of Modern History at Oxford, Smith moved to the United States but eventually settled in Toronto. He is also the author of what was once described as “the most pessimistic book … ever written about Canada, and he advanced the most radical solution for the frustrations of the day – union with the United States.”46 Published in 1891, Smith’s Canada and the Canadian Question grappled in a fundamental way with questions about identity and destiny, and wove together several of the themes that George Grant and Alan Cairns discussed a century later. A century is a long time and much can change. What separates Smith most clearly from either Grant or Cairns are his assumptions about the importance of race and the superiority he attributed to the

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Anglo-Saxon or English-speaking race. He was not the kind of racist who advocated, as some later racists have, ethnic cleansing, the deportation of “inferior” races, and eugenic reproductive methods. His brand of racism was much milder and it derived partly from a belief in progress and the contribution of English-speaking people to it. Like the Manchester School of liberal economics, he attached great importance to free trade, individual initiative, and material well-being; and strongly opposed economic protectionism, paternalistic government, and the acquisition of colonies. Almost everyone in the age in which he lived attributed importance to race in one way or another, but not everyone subscribed to the beliefs of Manchester School or to the philosophy of liberalism. He was also an early advocate of geopolitics and once insisted that “few have fought against geography and prevailed.”47 Toward the end of Canada and the Canadian Question, his final and strongest appeal, however, was to destiny pure and simple. “If the primary forces are working towards an event,” he wrote, “sooner or later the crisis arrives; the man appears, and the bidding of Destiny is done.”48 For Smith, destiny dictated that Canada’s future belonged in a commercial and political union with the United States, rather than in continued colonial dependence, or in complete national independence, or in an Imperial Federation. In an essay entitled “Canadian Fate and Imperialism,” published in 1969, George Grant insisted, much like Smith and others before him, that “a central aspect of the fate of being a Canadian is that our very existing has at all times been bound up with the interplay of various world empires.”49 Where Grant differed from Smith was that he took a much less benign view of Canada’s relationship with the United States, and expressed deep concerns about the kind of life Canadians would be able to live once their Britishness ceased to matter and they embraced the worldview of American technological capitalism. Moreover, Grant regarded liberalism as morally and politically pernicious, whereas Smith associated it with the highest development of civilization and the political maturity of the human race. For Smith, “the United States represented the almost ideal society and everything the English liberals were striving to attain.”50 His beliefs about Canada’s destiny were not just based, however, on a political ideal. In fact, the very first sentence of his book is that whoever “wishes to know what Canada is, and to understand the Canadian question, should begin by turning from the political to the natural map.”51 The political map, he said, showed

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one united country; the natural map revealed four distinct geographical regions that were separated from each other but contiguous with the United States. Canadian Confederation, as Smith knew, had focused significantly on the political map and had as one of its great objectives the creation of “a new nationality.” In the debates of 1865, it was D’Arcy McGee who took responsibility for originating this phrase and applying it to Canada. An enthusiastic supporter of Confederation, McGee, like Macdonald and Cartier, contended that geography was not an obstacle to the creation of “a new nationality.” What keeps nations separate from each other, he said, is not “a parallel of latitude or even a natural obstacle”; what really keeps nations either intact or apart, he insisted, is “a principle” that transforms a place, a territory, or even a continent into “our Federation, or our Country, or our Kingdom.”52 Writing almost thirty years later, Smith surveyed “the fruits of Confederation” and denied that any such transformation had or could take place. Railways, he said, were constructed to link the severed regions of Confederation, but failed to increase trade because the natural market for their goods was the United States. Nor had Confederation produced a “national literature” or dampened the demand of Ontario readers for the magazines of New York. Canadian cities, he insisted, are no different than American cities of the same size; the Canadian public school system is much the same as that of the United States; and “a Presidential election now makes almost as much stir in Canada as it does in the United States.” On the side of union with the United States, he said, were “geography, commerce, identity of race, language, and institutions,” which were rapidly producing “a general fusion” and left “no barriers standing but the political and fiscal lines.”53 Not only was Canada, Smith contended, becoming a replica of the United States, but the harmony promised by the supporters of Confederation had not been achieved, and was in any case unattainable. Confederation, he believed, had done as little to bring about a fusion of the population between the provinces as it had for the creation of inter-provincial trade. Even with respect to the Englishspeaking provinces, Smith insisted, there was no evidence that Confederation had strengthened “the community of feeling” necessary for the creation of a new nationality. Nor were his concerns about Canadian unity lessened by the tide of new immigrants to the NorthWest, which he regarded as “a motley sort” and not of “the best material for a new community.” What concerned him most, however,

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was French Canada and the failure of Confederation “to merge her nationality into that of the Dominion.” Quebec, he observed, had recently unfurled her national flag, demanded complete autonomy, and dispatched representatives to Ottawa solely for the purpose of pursuing her separate interest. Quebec was “a little French nation” which “the digestive forces of Canada have been too weak to assimilate … even politically.” Nationalities, he went on to say, were more “easily ground down … [in] the hopper of the mighty American mill,” and one of his key arguments for a vast continental union with a large English-speaking population was that its assimilative powers would be greater still.54 Smith’s ultimate concern was with what he called “the horoscope of Canada”; yet only two of his ten chapters focused on the present and the future. The other eight surveyed Canada’s past and dealt with such topics as “French Canada before the Conquest” and the “History of Upper Canada.” “British Canada,” he insisted, “would never have come into existence … had the Americans been as wise and merciful after their first as they were after their second civil war, and closed the strife … with an amnesty.” As for French Canada, he detected an even greater folly, especially in the policy of the British government toward it. “By giving up Lower Canada to the French and to French Law,” he wrote, “the Act of 1791 finally decided that French nationality should be preserved, and that British civilization should not take its place.” He then added: “Thenceforth England brooded like a misguided mother-bird upon an egg from which, by a painful and dangerous process, she was to hatch a French Canadian nation.” Confederation fared no better and he found little to admire in the Canadian constitution. “One must have the touch of Voltaire … to impart anything like liveliness to a discussion of the British North America Act.”55 Smith’s grand theme was not just that Canada’s future – its destiny – belonged in a commercial and political union with the United States, but that Confederation had failed to create the promised “new nationality” and no one familiar with Canadian history should be surprised or disappointed by the failure. Grant and Cairns also addressed the failure of Confederation.56 Unlike Smith, however, neither Grant nor Cairns regards Confederation as a misconceived constitutional project from its outset. They also analyze Canada almost a century after Smith and, by comparison with him, take a benign view of the Canadian experiment, at least before the 1960s. To be sure, Grant considered the liberal policies of

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Mackenzie King of the 1940s as incompatible with the Canadian identity. And negative aspects of the unconstrained province-building described by Cairns (and Black) can be traced to an even earlier date.57 Nevertheless, neither Grant nor Cairns viewed Canadian history in the way that Smith did. Instead, they both endorsed a discontinuity thesis with the early 1960s as the decisive and disruptive turning point. In his memorandum to Diefenbaker, Grant contrasted the achievement and greatness of Confederation with the crisis and weakness of his own times.58 In Lament for a Nation, he endorsed “the constitutional arrangements of 1791, and the wider arrangements of the next century.” Those arrangements, he insisted, presupposed a common determination not to be American, which in turn enabled the British Loyalists “to come to a modus vivendi” with the French, and build a better and more stable society than the American variant.59 Cairns’s view of pre-1960 Canada is much more complex, but beginning in 1977 he endorsed a discontinuity thesis in “The Other Crisis of Canadian Federalism” as well as in other writings. “The contrast between our constitutional world and that of our predecessors,” he wrote later, in 1995, “is so striking that their sequential existence in the same country … appears scarcely possible.”60 Confederation, understood as a lost constitutional world, is not the same as an inherently flawed or misconceived constitutional project. Even so, one reason for considering Grant, Cairns, and Smith together relates to the idea of a Canadian constitutional crisis. For both Grant and Cairns, the Canadian constitutional crisis began largely after 1960. But their account of pre-1960 Canada and especially their discontinuity thesis is difficult to reconcile with Smith’s portrayal of Canada as it existed in 1891 or earlier and the kinds of problems described by him and others. In a study of the period from 1874–96, a noted contemporary historian concluded that “Canada is a hard country to govern” and emphasized its “arduous destiny.” “If Canadians do not indulge in loud professions of patriotism,” he wrote, “it is because the very existence of Canada takes patriotism enough.”61 Since the Canadian constitutional crisis is an important topic for Canada’s identity and destiny, it is relevant to ask when did it begin, what are its sources, and what is its significance? In regards to these questions, Smith’s views or Dunkin’s views in the Confederation debates are far from irrelevant and appear to cast doubt on both the discontinuity thesis and the idea of a lost constitutional world. Several of the important structural and pluralist features of the Canadian

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constitutional crisis not only precede 1960 but are part of the foundation of Canada, and this fact is important for understanding Canada, including the ethics of Canadian constitutionalism and Canada’s constitutional faith. Coming to terms with the Canadian constitutional crisis may also require consideration of a topic identified by Northrop Frye in his studies of literary archetypes. In his conclusion to Literary History of Canada, published in 1965, Frye suggested that one of the most persistent and popular images of Canada was “the peaceable kingdom.” Moreover, he detected in the idea of “the peaceable kingdom” some traces of “the pastoral myth” of ancient Greek and Roman literature, and noted that images of peace, stability, and simplicity frequently appeared in novels and other writings about (the old) Canada. “It even comes,” he wrote, “into our official documents … [such as] the Massey Report.”62 Americans have also appealed to the pastoral myth, but they place it alongside even more widely held ideas about their country as the novus ordo seclorum and as the redeemer nation.63 In Canada and the Canadian Question, Smith associated the pastoral myth with the way of life of the French Canadian habitant and dismissed both as antiquarian. He was far more interested in praising American liberal capitalism and urging Canadians to join the United States.64 The pastoral myth ceases to be merely an antiquarian illusion for Canadians, however, if some of its elements are reformulated and modernized as “the peaceable kingdom” or as “peace, order, and good government.”65 In the reformulated context, an analysis of the Canadian constitutional crisis that combines Grant and Cairns with Smith (or Dunkin) helps to show that ideas about “the peaceable kingdom” and “peace, order, and good government” – despite their importance for Canada – have never been the whole of the Canadian identity, not even before 1960. And once this is acknowledged, it become possible to conceptualize ways in which the Canadian constitutional crisis is part of Canada’s living and pluralistic constitution and its evolving constitutional faith.

T h e A r du o u s Desti ny o f t h e P e ac e a b le Ki ngdom Most Americans believe that they know what the destiny of their country is, and for them a great crisis is the call of destiny. Canadians have also had great crises throughout their history, but those crises

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have not made them more certain about the destiny of Canada. In a letter to Edward Blake, written in the same year that Goldwin Smith was proposing union with the United States, Wilfrid Laurier also reflected on Canada’s destiny. “We have come to a period in the history of this young country,” Laurier wrote in 1891, “when premature dissolution seems to be at hand.” Questions about Canada’s future, he continued, “surge in my mind and … dismal answers suggest themselves.”66 The crisis passed and Canada did not fall apart or join the United States. Smith continued to promote plans for union with the United States until his death in 1911; Laurier’s objective, as prime minister and in opposition, was to preserve and extend Confederation, a fact not forgotten many years later when Frank Underhill called him “the greatest of all Canadians” in his lectures on Confederation. Writing in 1964, when Canada’s future was again fiercely contested, Underhill ranked Laurier more highly than any other prime minister “because he devoted his life to this most intractable of all problems, the finding of terms on which English-speaking and French-speaking Canadians can learn to live together … more or less amicably.” Underhill’s ultimate purpose, however, was not to remember the past so much as to influence the future, and to insist that “the best way in which we can commemorate [the work of 1867] … is not by breaking up … but by going forward ourselves to create something new, some wider, international, transnational community.”67 Confederation is the great Canadian enigma. For Grant, Cairns, and others it seems part of a lost constitutional world. Underhill wished to commemorate its spirit by reaching beyond it. As for Goldwin Smith, he did not believe that Confederation was worth remembering. He noted that the Canadian founders had debated Confederation, and their debates filled a volume of more than a thousand pages. Most of it, he insisted, “is mere assertion and counterassertion” and “almost the only speech … [of] much interest … is that of Mr Dunkin.”68 But Dunkin, as Smith knew, was an extreme opponent of Confederation who believed that it was destined to fail. If Dunkin was foremost among the prophets of doom, D’Arcy McGee came closest to associating Confederation with God’s plan and the Second Coming. “If we have dreamed a dream of union,” he said in 1865, it is a dream comparable to “a vision … by the Daniels and the Josephs of old.” Moreover, he quoted with approval the view of Confederation as “a measure which alone, under Providence, can secure to us social order and peace, and rational liberty.”69 Both

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Dunkin and McGee provided one-sided assessments, and neither was able to grasp more than half of the Confederation experiment or the meaning of Canadian pluralism.70 From its inception, Canada was the land of “peace, order, and good government,” but Canadian pluralism and multinationality also brought with them an arduous destiny in the search for “the peaceable kingdom.”

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10 Constitutional Faiths The Canadian Identity, American Freedom, and the Remaking of the British Constitution “I nt e n d e d to E n du r e for Ages to Come” No country is immortal, as Pierre Trudeau frequently reminded Canadians; yet a country’s constitution, as Chief Justice Marshall insisted, is “intended to endure for ages to come.”1 The chief justice made his statement in McCulloch v. Maryland. Like all great cases, it can be viewed from a variety of perspectives. For Americans, its overt political importance is that, by providing a “liberal” interpretation of national power, it helped to secure a more promising future for the Constitution of 1787 than that of the ineffectual Articles of Confederation. It also has a more universal dimension, which in Canada falls under the “living tree” constitution and in England includes the “Glorious Revolution” and Whig constitutionalism.2 At the heart of Chief Justice Marshall’s decision is his famous conception of what a constitution is, what its purposes are, and what its existence means. A constitution, he said, is not a prolix legal code because, if it were, it could “scarcely be embraced by the human mind” or “understood by the public.” What a constitution requires is only that its great outlines should be marked and its important objects designated. For a constitution, the chief justice insisted, is not simply framed for the present but must be “adapted to the various crises of human affairs.” And we must never forget that “it is a constitution we are expounding.”3 What feature of a constitution enables it to endure and to respond to various crises? The general answer that Chief Justice Marshall provided is that, because a constitution is composed of abstract concepts and general principles, it can be easily adapted to changing

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circumstances. He also assumed that the task would fall primarily to judges. A constitution, in his view, is not frozen in time but is a “living constitution” that judges interpret and apply. But such a conception of a living constitution is too simple and one-sided. It is one-sided because it focuses too much on judges.4 It is too simple because Chief Justice Marshall does not say very much about the idea of a constitutional faith, not even about the American constitutional faith. If a constitution is to command allegiance and endure when confronted by great crises, it must rest on some kind of constitutional faith, and a constitutional faith (which includes a constitutional ethic) is never solely what the judges say it is.5 A landmark American case demonstrates as much. In Dred Scott v. Sandford, the Supreme Court attempted to settle on its own the highly divisive issue of slavery. But its immensely controversial decision made the Civil War more likely.6 A court more aware of its own limitations and more sensitive to the tensions in the American constitutional faith would have contributed more than the Taney Court in Dred Scott v. Sandford. A “living constitution” presupposes some kind of constitutional faith; and just as constitutions differ, so do constitutional faiths. Since many Americans worship their constitution in normal times and turn to it for inspiration in times of crisis, what they sometimes need to be told, in the words of Jefferson, is not to regard it with “sanctimonious reverence” or as “too sacred to be touched.”7 Until recently, such a cautionary message was also sometimes necessary with regards to the British constitution, which rivalled the American as one of the most admired and imitated constitutional systems.8 But the British constitution is no longer the object of unalloyed veneration, at least not in the United Kingdom where there is now deep dissatisfaction with it and the changes recently introduced have even been described as based on no “fixed principles of reason – or indeed … any principles at all.”9 Even those who endorse the changes believe that more changes are necessary and describe the contemporary British constitution as “some distance from the Promised Land.”10 As for the Canadian constitution, the Confederation Settlement of 1867 has never been considered “too sacred to be touched” and the 1982 Charter of Rights is regarded with less than “sanctimonious reverence” by Quebec separatists, Aboriginal nationalists, and Charter skeptics. Taken together, the three constitutions reveal a great deal about a “living constitution.” Canada’s “living constitution” is far more contested than the American now is or the British once was. But in a world torn

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by moral and political divisions, Canada’s deeply pluralistic constitutional ethic for a multicultural and multinational polity is not any less remarkable than America’s appeal to self-evident truths about freedom or British Whig narratives about parliamentary sovereignty and triumphs over royal despotism.

T he R e m a k in g o f t h e B r i ti sh Cons ti tuti on What is remarkable about the British constitution is not the changes recently introduced or that remain to be made to it, nor even the declining enthusiasm with which it is now regarded. The British constitution is among the most remarkable of all constitutions because it has endured and has been adapted to countless crises. Moreover, despite the many changes over many centuries, there has never been a sustained break in its continuity; and even as late as 1953 it was described by one commentator as, in essence, “the very constitution under which [Edward] the Confessor ruled and which William [the Conqueror] swore to obey.”11 Just as remarkable as its longevity, it is the high regard in which it has been held by, for example, Montesquieu and Voltaire in the eighteenth century, the Fathers of Canadian Confederation in the nineteenth century, and Americans such as Woodrow Wilson in the early twentieth century. “Of a constitution, so wisely contrived,” wrote Sir William Blackstone in the late eighteenth century, “it is hard to speak with that praise, which is justly and severely its due.”12 In a similar vein, Sir Ivor Jennings noted in 1959 that “in the process of constitutional development England first and Great Britain afterwards have led the way … [and] nations who dare to call themselves free have built largely on British experience.”13 The British constitution has also had its critics. Less than a year after Edmund Burke published his famous Reflections on the Revolution in France, in which he condemned the constitutional theorizing of the philosophes and praised the pragmatic wisdom of the British constitution, Thomas Paine wrote his equally famous reply to Burke and defended a written, republican constitution. “A constitution,” said Paine, “is a thing antecedent to government” and consists of “the body of elements, to which you can refer, and quote article by article.” Paine then asked rhetorically: “Can … Burke produce the English Constitution?” He could not, Paine insisted, because although the English constitution was “much talked about,” it did not exist, and the people of England “have yet a constitution to form.” Paine

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objected partly to the unwritten aspects of the British constitution, and even more to the fact that, because it could be modified by ordinary legislation, it was at the mercy of the government of the day. But what he found most intolerable of all was that it enshrined, he believed, monarchy and the hereditary system, it sacrificed individual merit on the altar of inequality and hierarchy, and it subjected the government of the living to the dead hand of the past. Moreover, in praising the British constitution and condemning the French radicals, Burke had overlooked the fact, Paine insisted, that the world had entered a new age of reason and revolution based on the universal rights of man, an age “in which everything may be looked for.”14 What Paine criticized and Burke celebrated was the “Whiggism” of the eighteenth-century British constitution. 15 Constitutional “Whiggism” rested on the Glorious Revolution of 1688–89, which brought William and Mary to the throne, established the supremacy of Parliament over the royal prerogative, and vindicated “the ancient rights and liberties” of the English people. Moreover a new act of the parliament asserted that James II had not been ousted from power; rather, he had fled the country and “abdicated” the government.16 Whig historians celebrated the Glorious Revolution and called it the bloodless revolution and the sensible revolution. “The spirit of this strange revolution,” writes a twentieth-century Whig, “was the opposite of revolutionary. It came not to overthrow the law but to confirm it against a law-breaking King. It came not to coerce the people into one pattern of opinion … but to give them freedom under and by the law.”17 That was also Burke’s view. “The very idea of the fabrication of a new government,” Burke wrote, “is enough to fill us with disgust and horror.” The English Revolution, he continued, “was made to preserve our antient indisputable laws and liberties, and that antient constitution which is our only security for law and liberty.” Burke, like Sir Edward Coke before him, traced many of those liberties back to Magna Carta, which – again like Coke – he described as an affirmation of still older law. Not the abstract and fictitious rights of man, was Burke’s famous reply to English supporters of the French Revolution, but the real and ancient rights of Englishmen.18 As long as the focus was on royal despotism – real or alleged, Stuart or Norman – Whig assertions about ancient rights and freedoms were not easily bettered and Burke’s argument triumphed. But the revolutionary Whigs did not merely oppose royal despotism or celebrate the rule of law; they also claimed to speak for the people

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and to defend their interests. That the eighteenth-century British constitution witnessed, and even facilitated, an enormous expansion of England’s commercial wealth and a consolidation of her political power on the world stage seems plain enough. Writing in 1849, and reflecting on the hundred or so years between 1688 and 1789, Lord Macaulay insisted the Constitutional Settlement of 1688–89 had set in motion not only an “auspicious union of order and freedom” but also “a prosperity of which the annals of human affairs had furnished no example.” Great Britain, he continued, “rapidly rose to the place of umpire among European powers” and “her opulence and her martial glory grew together.”19 Macaulay’s portrait of eighteenthcentury Britain is a classic of Whig historiography, but it is also a very partial portrait because of what it does not record. Once the new Constitutional Settlement was in place, as one historian has written, the Whiggism of principle gave way to the Whiggery of office-holding, and “the Whigs became oligarchic and mercenary, with no thought for reform, toleration or popular participation in government.” The poor suffered most, and “capital punishment in eighteenth-century England … [became] a way of life, enforcing by fear an increasingly stratified class system.”20 When Burke defended the eighteenth-century British constitution, he did so as a Whig with Tory leanings. As a Whig, he defended the ancient rights of the English people and their claims to freedom and self-government; like an old Tory, however, he justified inequality in many forms and subscribed to a brand of governmental paternalism that conflicted with English liberty. Where Burke diverged completely from the old Tories and sided entirely with the Whigs was in his belief, articulated in his debate with English radicals, that “a state without the means of some change is without the means of its conservation … [and] might even risque the loss of that part of the constitution which it wished the most religiously to preserve.”21 Burke’s precept was reform, not revolution, and revolution only as a last resort. Moreover, although Burke was satisfied with almost every aspect of the eighteenth century constitution, many others were not, and much of the next century bore testimony to the spirit of reform which Burke himself praised. Writing shortly after the close of the nineteenth century, A.V. Dicey noted that it had been a century of great change and remarkable reforms. The nineteenth century, Dicey said, had begun as the period of old Toryism or legislative quiescence, it became the period of Benthamism or individualism, and it ended as the period

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of collectivism or socialism. In less than a century, England had become a political democracy and was experimenting with socialism.22 Dicey accounted for these remarkable changes by reference to profound shifts in public opinion. He worried, though, that socialism was an untried theory of society and, if implemented too quickly and too blindly, would undermine important freedoms.23 In this way, and in the importance he attached to the rule of law as a check on despotic power, Dicey was a Whig, although his conception of the English constitution differed in several respects from Burke’s and from classical “Whiggism.” For Burke, the genius and moderate character of British governance was linked to the existence of a mixed constitution, in which democracy, aristocracy, and monarchy were equally balanced.24 But the theory of the mixed constitution in its classical form received little support from either Bagehot or Dicey. Part of the reason is that Bagehot’s The English Constitution and Dicey’s The Law of the Constitution appeared after the great electoral reforms of the nineteenth century had relegated the House of Lords to a subordinate role. Even more important is the fact that Dicey did not regard the mixed constitution that Burke conceptualized as essential for English liberty or English constitutionalism. “Two features,” he wrote, “have at all times since the Norman Conquest characterized the political institutions of England.” One was the “undisputed supremacy throughout the whole country of the central government”; the other was “rule or supremacy of law.” Dicey also attached importance to a third feature. It was, he said, the conventions of the constitution that secured, “at the present day” and in “a roundabout way,” the sovereignty of the people and “the conformity of Parliament to the will of the nation.”25 English constitutional theory has not stayed still since Dicey, but neither has it moved very far away from him, at least not in its main outlines.26 Dicey’s declared objective was to state the law of the constitution as it stood in his own day. He had only a minor interest in history, no interest at all in antiquarianism, and he tried to avoid judgments of value. Where earlier writers like Burke and Hallam had lavished praise on the British constitution, Dicey’s goal “was neither to criticize, nor to venerate, but to understand.” Nevertheless, the three principles he identified – principles concerning the sovereignty of parliament, the rule of law, and the conventions of the constitution – quickly acquired a canonical status. Moreover, Dicey contributed, however unwittingly, to their sanctification by describing them as

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essential to English constitutionalism, and by then contrasting English constitutionalism with other types of constitutionalism that he did not always regard favourably. As Dicey wrote: “I have not only emphasized the doctrines … which are the foundation of the existing constitution, but have also constantly illustrated English constitutionalism by comparisons between it and the constitutionalism … of the United States, and … the French Republic.” Dicey believed that “comparison is essential to recognition.”27 But in the case of the three principles he identified, comparison did not just increase their visibility; it also enhanced their distinctiveness as principles of English constitutionalism, highlighted their foundational status, and made the British constitution seem almost unimaginable without them. What Dicey perfected and canonized was the Whig-Liberal view of the British constitution. Like many before him, Dicey regarded the sovereignty of parliament as “the dominant characteristic of our political institutions” and as “the very keystone of the law of the constitution.” But although Parliament was legally omnipotent and aggregated power in the manner described by the Westminster model, its own supremacy, Dicey insisted as a Whig-Liberal, was so closely allied with the supremacy of the ordinary law administered by the ordinary courts that the rights of the people were more secure in Great Britain than they were in many countries with an entrenched Bill of Rights. The rule of law, he insisted, “is peculiar to England, or to those countries which … have inherited English traditions.” When combined with the sovereignty of parliament, it sustained a system of government far less arbitrary than any found in most European countries and much less rigid than the American constitution.28 For Dicey, it was this unique blend of parliamentary sovereignty and the rule of law that constituted the most distinctive and valuable accomplishment of English constitutionalism. But whatever its merits when compared with foreign systems of government, the British constitution also had to meet a number of domestic challenges in Dicey’s own time, among them the challenge posed by socialism and the demand for Irish Home Rule. Dicey could regard socialism with a cautious skepticism, but he was outright hostile to Irish Home Rule.29 What then would he have said of Home Rule for Scotland and Northern Ireland, devolution for Wales, a Bill of Rights for the whole of the United Kingdom, and the fluctuating relationship with the European Union?30 One answer is to say that Dicey’s views do not matter because there are many other conceptions of the British Constitution besides his

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Liberal-Whiggism, including Burke’s notion of a mixed constitution and Disraeli’s idea of a Tory democracy. What is essential, after all, is not the theorizing of Dicey, but the British Constitution and its almost uncanny ability to adapt to changing conditions and respond to the various crises. But such an answer conflates two different questions. Reviewing recent changes, Anthony King has asked, “Does the United Kingdom Still Have a Constitution?” Not surprisingly, his answer is that it does “in the purely descriptive sense.” But a different answer emerges, he insists, when a constitution is understood in Lord Bolingbroke’s sense: as not just any assemblage of laws, institutions, and customs, but instead as an assemblage derived from certain fixed principles of reason. With Bolingbroke as his guide, who was a Tory with Whig leanings, he goes on to say: the new constitution “lacks not only a planner but a plan,” it resembles not a Gothic cathedral but “possibly a builder’s yard,” and no one has been able to make enough sense of it to expound its meaning or to extol its virtues. As to what the future holds, his only answer is: “We shall see in due course.”31 In The New British Constitution, Vernon Bogdanor endorses most of the contemporary changes and anticipates many more changes, but he also warns about the incongruence between “our constitutional and political forms” and “our public philosophy.”32 There are, finally, Scottish nationalists. All of them reject Dicey and many of them seem increasingly unable to imagine a future for the Anglo-Scottish Union.33

A m e r ic a n F reedom a n d “ T h e C au s e o f All Manki nd” In his debate with Burke, Paine did more than criticize the British constitution; he also celebrated the American Revolution and identified America’s future with the hopes of all people everywhere. In Common Sense, Paine insisted that “the cause of America is in a great measure the cause of all mankind.” He also called America a “new world,” a home “for the persecuted lovers of civil and religious liberty,” and “an asylum for mankind.”34 What Paine described are some of the key principles of the American constitutional faith, which was more fully and authoritatively proclaimed in the Declaration of Independence.35 The people of America, it was said, regarded certain truths as self-evident – “that all men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.” Moreover, these

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rights are to be secured by governments that derive “their just powers from the consent of the governed” and the people always retain their right to alter or replace a government that becomes tyrannical as George III’s had become.36 American presidents frequently reiterate these themes in inaugural addresses. In their devotion to freedom Americans of the founding generation also won the admiration of Burke, who defended their cause – and whose “Speech on Conciliation” with the Colonies ranks with Paine’s Common Sense and other classics of the American Revolution. In later years, Burke was criticized for denouncing the French Revolution when he had earlier stood with the American dissidents. Burke met his detractors by insisting that he had sided with the Americans because the colonists had initially sought a redress of their grievances and had no intention of overthrowing the Crown. “Americans [stood] at that time, and in that controversy,” he recalled and replied, “in the same relation to England as England did to King James the Second in 1688.”37 Burke distinguished the French and American Revolutions and insisted that the American dissidents were, in effect, the Old Whigs of the New World and, like the Old Whigs, adopted revolutionary means only as a last resort. As Burke said in his “Speech on Conciliation,” the American cause, which protested taxation without representation, was the same as the British cause, and Britain could not deny America its freedom without deriding principles and feelings “for which our ancestors have shed their blood.” The colonists, Burke insisted one year before America declared its independence, “are not only devoted to liberty, but to liberty according to English ideas and on English principles.”38 What Burke clearly grasped was the way in which the colonists used English ideas to defend their rights. He had, nevertheless, too restricted a view of American liberty. For although the ideas to which the colonists most frequently appealed were English ideas, their appeal was less often to the English Revolution of 1688 than to the English Civil War of four decades earlier and especially to its republican legacy.39 In his unsigned “Novanglus” essays, John Adams not only insisted that resistance to Charles the First had saved both England and mankind from “a state of darkness and misery”; he also described the British government of his own day as a corrupt government no longer committed to freedom. He furthermore insisted that only the republican spirit embodied “true virtue, and honest independence.”40 Equally noteworthy is Jefferson’s “A Summary View of the Rights of

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British America.” Jefferson traced English liberty back to Saxon ancestors and praised “the British constitution, at the glorious revolution, on its free and antient principles.” But Jefferson also believed that the Stamp Act and the Declaratory Act and the Act to Suspend the Legislature of New York were attempts to reduce the American people to a condition of slavery. And he saved until the end what he took to be the most important argument: “The God who gave us life gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them.”41 Americans of the founding generation valued the English heritage of liberty, but they also reached beyond it and would never have endorsed Burke’s preference for the rights of Englishmen over the rights of man.42 It was George Washington who captured the spirit of revolutionary America and spoke for it. “The foundation of our empire,” he wrote shortly after the close of the revolutionary war and as Americans experimented with governing themselves under the Articles of Confederation, “was not laid in the gloomy age of Ignorance and Superstition, but at an Epocha when the rights of mankind were better understood and more clearly defined, than at any former period.” The same sentiments were proclaimed in the Declaration of Independence and other revolutionary manifestos, but the circumstances of post-revolution America were changing and it was no longer enough for Americans to declare their rights, nor even enough to fight and die for them. As the context of Washington’s remark makes plain, the task facing Americans was how to combine the authority of government with the freedom of citizens. Moreover, Washington expressed dissatisfaction with the Articles of Confederation and warned of the imminent failure of the American Union. “This is the time,” he wrote, “of [our] political probation … when the eyes of the whole World are turned upon [us].” It is, he added, either the favourable moment to enhance the Federal Government and enable it to fulfill the purposes for which it is intended; or the ill-fated moment for relaxing the Confederation and allowing ourselves “to become the sport of European politics.”43 Washington believed that America had a divine mission. It was a theme to which he returned after the adoption of the new Constitution. “The preservation of the sacred fire of liberty, and the destiny of the republican model of government,” he insisted as president, “are justly considered as … staked on the experiment entrusted to … the American People.”44 But why should the new Constitution be any more able to

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accomplish these objectives than the discredited Articles of Confederation? Washington never answered this question, but James Madison did. The Articles of Confederation were an inadequate frame of government, he contended, not just because they allocated too few powers to the federal government, but because they rested on an inadequate theory of democratic republicanism. “It may be inferred,” Madison wrote before the meeting of the Federal Convention, “that the inconveniences of popular States, contrary to the prevailing Theory, are in proportion not to the extent, but to the narrowness of their limits.”45 The prevailing theory assumed that democracy flourished best in small societies where the people could directly manage the affairs of government. But, replied Madison, in a small society competing interests are more difficult to control and the common good more easily gives way to the tyranny of faction. For Madison, the solution was to extend the territory of the republic, coupled with such important measures as representative government and an elaborate scheme of institutional checks and balances at both the local and national level. In this way, “we behold a republican remedy for the diseases most incident to republican government.”46 The republican remedy Madison described did not require a Bill of Rights, and the Constitution as it emerged from the Federal Convention did not contain one. Its absence troubled Anti-Federalists who took a dark view of the entire Constitution. Luther Martin believed that the framers of the Constitution had been blinded by ambition and had as their real objective the erection of a despotic empire, the destruction of all state governments, and the debasement of their fellow citizens.47 Jefferson, who described himself neither as a Federalist nor an Anti-Federalist, supported the Constitution but also insisted, in a letter to Madison, that “a bill of rights is what the people are entitled to against every government on earth.”48 In his reply, Madison argued that a Bill of Rights could not serve as the remedy for the principal defects of a republican government, however effective it might prove in a monarchy or a mixed government. Power lies in the majority of the community, he wrote, and the invasion of rights comes principally “from acts in which the Government is the mere instrument of the major number of the Constituents.” As a result, the principal remedy for this defect could not be sought in a Bill of Rights, but consisted of the multiplicity of interests and sects in an extended republic. Madison acknowledged, however, that it could perform a number of auxiliary functions in a republic, and he played a crucial role in the adoption of the US Bill of Rights in 1791.49

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Of the auxiliary functions identified by Madison, none is more important than his belief that “the political truths” declared in a Bill of Rights could acquire “the character of fundamental maxims of free government” and, if “incorporated with the National sentiment,” could even “counteract the impulses of interests and passions.”50 Madison did not explain the process by which such a result could be produced, but some of the conditions required and some of the obstacles to be overcome can be inferred from his other remarks. The first and most important obstacle relates to how the maxims of free government are to be defined. If the maxims include an abstract statement of rights, then the specification of the rights is crucial. Yet, as Madison noted, it is difficult to define fundament rights with precision in a constitutional text or to prevent the subsequent disparagement of rights omitted from the original enumeration. A partial solution, as Madison observed, is that rights not enumerated are retained by the people. However, such a provision will not just protect unenumerated rights, it will also exacerbate disputes about the definition and identification of rights. As for the conditions required, Madison cautioned against frequent changes to a constitution on the ground that they were corrosive of the veneration that time would bestow on the Constitution. “In a nation of philosophers,” he wrote, “a reverence for the laws would be sufficiently calculated by the voice of an enlightened reason.” But in every other nation “the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.”51 Most Americans venerate their Constitution as the voice of reason to a degree that not even Madison could have fully anticipated. Moreover, they venerate it even when they disagree about its meaning or about the kind of freedom it was designed to protect. One explanation of this paradoxical attachment is Max Lerner’s. “Every tribe,” he wrote, “needs its totem and its fetish, and the Constitution is ours.”52 But the Constitution is not just America’s totem and fetish; it also attempts to anchor what its framers regarded as America’s providential mission and especially its aspiration to be the land of the free. No one understood this better than Abraham Lincoln who both venerated the founders of the American Republic and recognized the limitations of what they were able to achieve. “I have never had a feeling politically,” he wrote shortly after becoming president, “that did not spring from the sentiments embodied in the Declaration of Independence.”53 But Lincoln also knew that the framers of the Constitution had compromised on the crucial issue of slavery and

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fallen short of their loftiest aspirations.54 Moreover, the dilemma that had bedevilled the framers also confounded Lincoln. He insisted that slavery was a great wrong that deprived the American republic of its just influence in the world, yet he also said that his first priority was to save the Union.55 During the Civil War Lincoln finally freed the slaves and became known as the Great Emancipator. Earlier, when Chief Justice Taney insisted, in Dred Scott v. Sandford, that the Declaration of Independence was a White Man’s document, Lincoln replied that “the authors of that notable instrument” did intend to include all men, and did regard them as equal in certain inalienable rights. They knew that all men were far from enjoying equality and they were also aware of their own limited ability to promote it. Nevertheless, they “set up a standard maxim for a free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly … augmenting the happiness and value of life to all people of all colors everywhere.” Just as vital for American freedom is Lincoln’s reply to George Fitzhugh, who insisted that Southern slaves were better off than hired labourers in the Northern states. “Twenty five years ago,” Lincoln answered, “I was a hired laborer.” He added: “Free labor has the inspiration of hope; pure slavery has no hope.” This is a theme to which he returned when he called the Civil War “a People’s contest”; and insisted that “on the side of the Union it is a struggle for maintaining in the world, that form, and substance of government, whose leading object is to elevate the condition of men … to afford all … a fair chance in the race of life.”56 Like the founders, Lincoln defines America and Americans turn to him especially when their country falls short of its ideals. In The Promise of American Life (1909), Herbert Croly called for sweeping economic reforms to assist the poor and unemployed, reiterated America’s almost religious faith in a better future, and described Lincoln as the American who best understood the “moral promise of genuine democracy.”57 Martin Luther King Jr also remembered Lincoln, and recalled how the signing of the Emancipation Proclamation “came as a great beacon of hope to millions of Negro slaves.” Moreover, like Lincoln, King went back to the founding of the Republic and prayed during the campaign of non-violent civil disobedience that America would soon fulfill the promise made in the Declaration of Independence. “I have a dream,” he said “deeply rooted in the American dream.” 58 Earl Warren believed in the

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American dream and, as chief justice during the civil rights movement, tried to contribute to it. “The Chief,” an admiring law clerk wrote, “did something that few will ever do: … [his judicial decisions made] the American dream more broadly accessible than it had ever been before.”59 If the American Constitution endures, it is not simply for the reasons John Marshall gave in McCulloch v. Maryland. Underpinning the Constitution is a constitutional faith built on a promise or dream or mission, that America will aspire, despite the significant limitations of its practice, to be “the sweet land of liberty.”60

T h e C a n a d ia n Id e n t ity and Canadi an C o n s t it u t io nali sm The Canadian equivalent of McCulloch v. Maryland on the “living constitution” is Edwards v. Attorney General of Canada, also known as the Persons case. Decided in 1930, it held that women were “persons” under section 24 of the British North America Act and, as such, were not disqualified by their sex for appointment to the Senate. Women as persons could be Senators, the Judicial Committee insisted, because “the British North America Act planted in Canada a living tree capable of growth and expansion” and their Lordships would not “cut down the provisions of the Act by a narrow and technical construction.”61 Although neither decision said very much said about a constitutional faith, Chief Justice Marshall and Lord Sankey were not completely silent. In reply to the assertion that the general government possessed only narrowly defined powers delegated by the states, the chief justice insisted that “the government of the Union … is … a government of the people” and has at its disposal ample enumerated powers with all necessary and proper means on which “the happiness and prosperity of the nation so vitally depends.”62 In a brief discussion of the adoption of the “new constitution” in 1867, Lord Sankey noted that “Canada had its difficulties … but soon discovered that union was strength.” It was not, however, just any kind of union. The resolutions that formed the constitution, he explained, “were based upon a consideration of the rights of others and expressed in a compromise which will remain a lasting monument to the political genius of the Canadian statesmen.”63 Although brief, the statements by Chief Justice Marshall and Lord Sankey highlight important differences between the identities and

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destinies of Canada and the United States and their respective “living constitutions.” The foundation of the American constitution is “we the people.” The United States is also a federation, but it is a federation that presupposes the existence of an American people. “No political dreamer,” Marshall wrote in McCulloch v. Maryland, “was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.”64 The states are vital as a check on the development of consolidated government, but American freedom is about the American people and their destiny. What the Chief Justice left unsaid in McCulloch v. Maryland, however, was what most Americans almost instinctively believe and what George Washington emphasized in his First Inaugural Address. It is the American people – not the state governments or the central government – who have been entrusted with “the preservation of the sacred fire of liberty, and the destiny of the republican model of government.”65 While Chief Justice Marshall did not identify the whole of the American constitutional faith in McCulloch v. Maryland, he did identify some of its most important elements. Lord Sankey’s statement about Confederation and “the political genius of the Canadian statesmen” is less detailed than Chief Justice Marshall’s discussion. Its importance as a statement of Canadian constitutionalism becomes evident, however, if it is compared, first, to what Chief Justice Marshall said about the American Constitution and, second, to what George Grant said about the Canadian identity and the aspirations of the Canadian founders. Chief Justice Marshall’s recurring theme is that Americans form one people. For him, there are difficult issues to be addressed but they have to do with how the constitution allocates and distributes power in promoting the happiness and prosperity of the American people. There is, that is to say, an American “we” expressed constitutionally as “we the people.” What Lord Sankey emphasized about Confederation was that it was “based upon a consideration of the rights of others.”66 Neither before Confederation, nor after it, could an appeal be made to “we the people.” In The Federalist, John Jay insisted that Americans were “one united people – a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government.”67 Had Canada been more like Jay’s description of the United States, Lord Sankey would not have considered it important to emphasize that Canada’s “living

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constitution” was “a lasting monument” to the Canadian art of compromise and “the rights of others.”68 An image of Canada and the Canadian founders that rivals Lord Sankey’s is George Grant’s influential portrait in Lament for a Nation. Grant’s focus was Macdonald’s Canada and the Canada of his youth. He grew up in Ontario in the 1920s and in those years, he suggested, “the character of the country was self-evident.” Canadians were “grounded in the wisdom of Sir John A. Macdonald,” and like him believed that the only real threat to their identity and their nationalism came from the United States, not from Great Britain. “To be a Canadian,” Grant wrote, “was to build, along with the French, a more ordered and stable society than the liberal experiment in the United States.” Writing in the 1960s, Grant’s purpose in Lament for a Nation was not only to insist that Macdonald’s Canada was no more; he also wanted to warn Canadians of their bleak future as they turned increasingly away from Great Britain and toward the United States. Nor did he believe that Pierre Trudeau or anyone else who rejected traditional, local, and parochial values could provide Canada with a new identity, at least not one that would mark its place in the world and distinguish it from the United States. Canada still had an efficacious constitution, but did it still have a distinctive and living constitution? Or was Canada destined to become, as Grant feared, a copy of the United States and one more part of the American empire?69 With respect to Canadian history, Grant expressed views that were widely held. “Our hope,” he wrote of the old Canada, “lay in the belief that on the northern half of this continent we could build a community which had a stronger sense of the common good and of public order than was possible under the individualism of the American capitalist dream.” It was a hope, he said, that depended on “a tradition of British conservatism” and on British ideas of constitutional government and the role of the crown which Canadians had inherited.70 A decade earlier, John Farthing also noted that Canadians were unlike Americans because they cherished “the essentially British character” which, he said, constituted their identity as a people. The Crown, he insisted, was “not merely a far-off institution” and the Queen of Canada was “no empty formality.” Rather, they affirmed the fact that Canadians “have a royal and not a republican form of democratic government” and also have “a different idea of social order” than the United States. The British North America Act “speaks of the federal government having to do with all matters pertaining to

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the peace, order and good government of the Canadian people.” For Farthing, the intellectual roots of Canada were located in the ideas of organic order and virtuous conduct elaborated by British conservative thinkers from Hooker to Coleridge, and owed nothing at all to “the aridites of the Lockes and Humes and Mills.”71 What troubled Farthing and Grant was that Canadians would adopt – by an act of will or through destiny – American ideas and the American way of life. Farthing warned that fascination with republicanism could only result in dictatorship by reducing democracy to the counting of votes and exalting the leader above all others.72 Grant’s greatest fear was that America’s implicit goal was the creation of a homogenous, universal state and that such a state might turn out to be a universal tyranny.73 Whatever their doubts about Canada’s future, they seemed to have had few doubts about their description of its past. Nevertheless, their account of the old Canada overlooks a deep puzzle. When they wrote their books, the Canadian constitution could already be described as a long-established constitution that had successfully responded to various crises. Why, then, as Alan Cairns and others have asked, had many Canadians already adopted a detached or unappreciative attitude to it? Why did Canadians in the old Canada not celebrate their living constitution the way Americans did? Cairns’s answer, sketched in 1970, was multidimensional. He emphasized that “the absence of an overt ideological content in its terms, and the circumstances surrounding its creation, have prevented the bna Act from being perceived as a repository of values by which Canadianism was to be measured.” Added to this was the economic depression that plagued its early existence, the constant bickering about its terms, and the failure to distinguish the written text from the living constitution. Cairns also warned, however, that a new constitution would not necessarily fare any better than the old one, while conceding at the same time that “perhaps … 1867 was not a good year for constitutions.”74 1867 was not so much a bad year for constitutions as a different year. But if too much attention is given to the British connection or to the antipathy Canadians have felt toward American republicanism, it becomes difficult to see how different it was. In Canada Views the United States, several of the contributors insist that Canadians have too often relied on ritualistic, uninformed, and negative estimates of the United States. One of the authors also suggests that Canadians have frequently engaged in what Freud termed the “narcissism of

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small differences.”75 When this occurs, little is learned about the United States or how Canada differs from it. Canadian constitutionalism also becomes more difficult to understand if too much attention is devoted to the British connection. In The Road to Confederation, Donald Creighton emphasized three things as vital for the creation of Canada: the overwhelming importance of Macdonald and his pragmatic approach to politics, the desire of the Canadian founders to keep British parliamentary government and preserve the British connection, and the suspicion with which Macdonald and other founders regarded federalism. For Macdonald, “government was neither a quest for political justice nor an exercise in political arithmetic” and the politician “should never aspire to the alien roles of prophet, philosopher or engineer.”76 As for federalism, Creighton believed that the acceptance of it “against their own political traditions and wishes, was the great concession that the English-speaking delegates … were prepared to make to French Canada.” But they made it, he insisted, only on the understanding that it would be a “strongly centralized federation, a federation radically different from that which had helped to precipitate the American Civil War.”77 The problem with the Creighton orthodoxy is not just that it privileges Macdonald’s role, or even that it underestimates the significance of Canadian federalism. Creighton’s portrait of Confederation, like Grant’s Lament for a Nation and Farthing’s Freedom Wears a Crown, consists of half-truths in which the Canadian identity is submerged in British conservatism and Tory royalism, and Canadian constitutionalism is a footnote to the British constitutional tradition. Creighton, Grant, and Farthing portrayed a significant aspect of Canadian constitutionalism, but not the whole of it. One way to begin to correct or complete Creighton’s portrait of Confederation is by examining Macdonald’s great speech of 1865. Creighton, as noted above, insisted that federalism was the concession that the English-speaking delegates made to French Canada. Yet Macdonald’s speech tells a different story. Macdonald began by saying that his own preference had always been for a legislative union. But the delegates, he went on to say, considered such a system “impracticable.” It would not meet with the assent of the people of Quebec, who felt that their different language, nationality, and religion might be assailed in a legislative union. Nor, Macdonald added, did it meet with the approval of the Maritime Provinces. “There was as great a disinclination,” he emphasized, “on the part of the various Maritime Provinces to lose their individuality,

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as a separate political organizations, as we observed in the case of Lower Canada herself.” Since only Upper Canada (Ontario) favoured a legislative union, its proponents “were obliged to modify their views and accept a federal union as the only scheme practicable.”78 In 1867, Canadians took for granted that they would maintain “the British connection,” and few suggested that Canada should embrace American republicanism or imitate American state sovereignty of the Civil War period. The pressing and divisive question was the extent to which institutions inherited from Great Britain required significant modification in order to meet the needs and circumstances of Canadian pluralism. That question recurred in 1982. Just as Confederation is often identified with Macdonald’s Tory vision of Canada, the Charter is frequently identified with Trudeau’s admiration for the American Bill of Rights. But neither Macdonald nor Trudeau was able to shape Canada in his own image. Macdonald admitted as much in the Confederation debates, even if his admission is sometimes forgotten. Trudeau compromised on the Charter’s notwithstanding clause. He also compromised on Aboriginal rights, which, when coupled with Quebec nationalism and other guarantees for group rights, makes Canadian constitutionalism unlike either British or American constitutionalism. Nor were Macdonald and Trudeau always satisfied with what they achieved. After Confederation, Macdonald worried about provincial rights, which he identified with states’ rights and civil war.79 Trudeau’s unrealized hope was that a bill of rights would break “the ever-recurring deadlock between Quebec and the rest of Canada.”80 In his Memoirs, he also recalled his advocacy of a preamble proclaiming that “Canada was … based on the sovereignty of the people … [but] the provinces would never agree to it.”81 Viewed from the perspective of America’s “sacred fire of liberty” or the “Whiggism” of British constitutionalism, the Canadian experiment is an enigma. It becomes less of an enigma if Alexander Hamilton’s Montesquieuian insight is remembered, namely, “that a government must be fitted to a nation … and … what may be good at Philadelphia may be bad at Paris, and ridiculous at Petersburg.”82 Even this insight does not go deep enough. A constitution “must be fitted to a nation,” yet the problem for the Canadian founders, unlike the American framers, was that there was no Canadian nation and no “we the people” to which an appeal could be made. Trudeau encountered the same problem when he insisted that the individual

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rights of the Charter would define Canadianism. Instead, he discovered the limited ability of the Charter to solve the recurring problem of Canadian unity. What makes the Persons case important in this context is that Lord Sankey identified the vital principle of Canada’s “living tree” constitution and the cornerstone of the Canadian identity. It is simple to state, but requires – as Lord Sankey said – genius to implement. In a fractured political world, which was and continues to be Canada’s political world, the essential thing is the ability to compromise and the willingness to consider the rights of others. This constitutional principle is as important for Canada as the idea of a providential mission is for the United States and Whig history is (or was) for Great Britain. Lord Sankey believed that the Confederation Settlement was the crucial manifestation of it; there are also other examples. One is the Royal Proclamation of 1763, which the contemporary Supreme Court considers a pillar of the Canadian constitution because of its recognition and protection of Aboriginal rights. Another is the Quebec Act of 1774. It is much less often discussed, but has been described as Canada’s first constitution or, in the words of Hilda Neatby, as “the first Imperial statute to create a constitution for a British colony.”83 Northrop Frye considered it as important an event for the future of Canada as the American and French Revolutions. “The Quebec Act,” he wrote “was an inductive, pragmatic, recognition of a de facto situation, and the situation was … profoundly illogical.” In the “illogical” situation created by the Battle of the Plains of Abraham, “the two factors to be taken into account were: (a) the British have conquered the French (b) the British have done nothing of the kind. The only way out of this was a settlement that guaranteed some rights to both parties.” Frye regarded the Quebec Act as crucial for the Canadian identity, because it rejected assimilation and established from the beginning “that nobody could ever possibly know what a ‘hundred per cent Canadian’ was.”84 Neither Sankey the judge nor Frye the literary theorist provided the final word about Canada – but Sankey did know something about Canada’s constitutional faith, just as Frye knew about the Canadian identity.

Con s t it u t io n a l F a it h s : Bri ti sh, Ameri can, C a n a d ia n , a n d European “The story of modern constitutionalism,” Carl Friedrich wrote in 1967 (Canada’s centenary), “may in many ways be depicted as a great

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debate between American and British principles.”85 In Constitutional Theory, Geoffrey Marshall summarized these competing claims as the difference between the “English concentration of powers” with ideological roots in Hobbes, and “the American separation of powers” based partly on “the Lockian philosophy of restricted governmental power and natural law.”86 Walter Bagehot’s The English Constitution, published in the same year as Confederation, provided a less neutral account. “The English constitution,” he wrote, “is framed on the principle of choosing a single sovereign authority, and making it good; the American, upon the principle of having many sovereign authorities, and hoping that their multitude makes up for their inferiority.” The fatal flaw in the American constitution, he insisted, was the absence of a ready, deciding power. The excellence of the English constitution was that it had achieved unity, and this “success” depended on “the peculiar provision … which places the choice of the executive in the ‘people’s house.’”87 What Bagehot described and praised was the nineteenth-century Whig theory of British parliamentary responsible government. The Canadian founders were familiar with responsible government and even skilled practitioners of it.88 From their perspective, however, Bagehot’s famous account leaves out an essential part of the great problem that Lord Durham grappled with when he recommended responsible government as the solution for Canada’s difficulties after the Rebellion of 1837–38. In his Report, Lord Durham wrote that he had come to Canada expecting “to find a contest between a government and a people.” Instead, he found “two nations warring in the bosom of a single state … a struggle, not of principle, but of races.” The conflict, he believed, penetrated into the social state and no reform of the constitution or laws could ameliorate it, which left the elements of society unaltered. He had a very low opinion of the French Canadians, and described them as “a people with no history, and no literature.”89 His proposed solution had three main components: unite Upper and Lower Canada into one province in which English Canadians would dominate, create a system of responsible government with respect to local affairs to appease the progressive English elements of Canadian society, and adopt additional assimilation measures that were gradual and did not shock the feelings of French Canadians. Although Upper and Lower Canada were united in 1841, nothing else happened the way Durham hoped. Durham appreciated the seriousness of the crisis, but took too simple a view of its causes and significantly underestimated

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the pride, energy, and resourcefulness of French Canadians. Not only did French Canadians resist all efforts at assimilation, but they cooperated with various English Canadians groups to create new de facto processes of government that combined responsible local government with a variety of quasi-federalism devices such as the double majority and dual ministries. Far from fulfilling Durham’s expectations, William Ormsby wrote, the union of 1841 served as a useful quasifederal experiment in cultural diversity, and “produced both the concept and the experience upon which a larger and more satisfactory union could be built.”90 In 1867, the most divisive issue remained the issue of nationality, coupled with deeply entrenched differences in local identities. Perrault complained that Confederation, like Lord Durham’s assimilation proposals, was a scheme to obliterate the French Canadian nationality.91 Joly believed that all federations contained some fatal vice, and the Canadian federation – with its deep national and local divisions – could not possibly work.92 As for the new government in Ottawa, Dunkin asked whose loyalty would sustain it.93 Macdonald’s reply was that, unlike American federalism, which “commenced at the wrong end,” the Canadian federation conferred the great powers of legislation on the general legislature and maintained the British connection.94 Cartier outlined a philosophy of federalism that did not presuppose a common culture or the existence of a Canadian nation and contained the beginnings of a pluralistic Canadian constitutional faith. The idea of “the unity of races” was impossible, he said, because dissimilarity appeared in the natural as well as the moral and political world. He insisted that a federal division of powers with minority rights, if appropriately drawn, provided effective guarantees for the differences of nationality, religion, and cultural or local identity. Canadians, he believed, had enough “kindred interests and sympathies” to not only sustain a general government but also develop a common but limited political nationality.95 The new Canada – as Cartier imagined it – was a country created by federalism and minority rights, in which people of diverse races, nationalities, religions, and local identities were together “in order to compete and emulate for the general welfare.”96 As a Canadian constitutional faith, it looked even more to the future than to the past. Innovative ideas about federalism are critically important for Canadian constitutionalism, just as innovative theorizing about Parliament is for English constitutionalism, and ideas about freedom

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are for American constitutionalism. There is also some important common ground. “In all its successive phases,” Charles McIlwain wrote, “constitutionalism has one essential quality: it is the legal limitation on government … its opposite is despotic government.”97 But this is where the agreement ends. In Great Britain, constitutionalism was developed in the struggle with royal despotism and has primarily meant Whiggism, whether in Burke’s or Bagehot’s or Dicey’s version. Whiggism in all its phases focused on parliament, the rule of law, and moderate government. One of the conventions of the British constitution, it has been suggested, is that “the legally unlimited power of the legislature is not used to its limits” to enact policies of an “immoderate character.”98 In his book on the growth of English constitutionalism, which influenced Dicey, E.A. Freeman went further. “We have,” Freeman wrote, “a whole system of political morality … which will not be found in any page of either the statute book or the common law, but which [is] in practice hardly less sacred than any principle embodied in the Great Charter or in the Petition of Right.”99 Freeman’s “hardly less sacred public morality” becomes Dicey’s “conventions of the constitution” and intersects with Dicey’s ideas about “the rule of law” and the sovereignty of parliament. Earlier, Bagehot had said that the English constitution was about a single sovereign authority, “and making it good.” In the United States, the focus has been on “the blessings of liberty” entrusted to “we the people.” And the dominant concerns of “we the people” have been with the evils of consolidated government, the tyranny of factions, and the injustices of slavery. The result has been the development of constitutional ideas about freedom in a compound republic with checks and balances (Madison), theories about judges as guardians of the constitution (Marshall), free speech for “the thought that we hate” (Holmes), and “colour-blind” citizenship with “free labour” as the inspiration of hope for “an almost chosen people” (Lincoln). If there is a fault line in American constitutionalism it is the place of slavery within the Union. “The free pioneer democracy,” Frederick Jackson Turner insisted, “struck down the slave-holding aristocracy on its march to the West.”100 But the legacy of slavery remains a formidable challenge. In Constitutional Faith, Sanford Levinson notes that for many Americans the Constitution is part of “the holy ‘trinity’ of the American civil religion,” along with the Flag and the Declaration of Independence. For them, the Constitution is an important source of “civil morality.” But Levinson also notes the

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problematic character of loyalty oaths. Moreover, in 1987, ceremonies were held in which citizens were asked if they would now sign the Constitution. Some refused. Many signed, among them Levinson himself. Constitution-talk incarnated, he said, some of the worst aspects of America, but it also captured what was best about it. And he remembered Frederick Douglass, who agonized over slavery, recalled the Declaration of Independence, and devoted his life to improving the Constitution.101 “The blessings of liberty” is also important in another way. In Turner’s account, quoted above, American freedom as “free pioneer democracy” ultimately defeats American slavery. In other essays, Turner explored the question of the basis of American unity. “Why,” he asked, in the 1920s, “with so vast a territory, with so many geographical provinces … did we not become another Europe?” He acknowledged that a kind of sectional (or regional) nationalism existed; but, with the tragic exception of the Civil War, the American section was really nothing more, he wrote, than “the shadowy image of the European nation … denatured of its toxic qualities.” There were not, in the United States, memories of so many national wrongs and national wars. Nor did the United States have the differences of languages or the same bitterness of class conflict found in Europe. “We legislate,” he wrote, “instead of going to war.” But it was not just that Americans knew how to resolve disagreements. “For, underneath all,” Turner insisted, “there is a common historical inheritance, a common set of institutions … and a common language. There is an American spirit [and] American ideals. We are members of one body, though it is a varied body.”102 A century earlier, in Democracy in America, Tocqueville said that no European nation, however small, had as much uniformity as the American people. Americans, he believed, had succeeded in combining “the spirit of religion” and “the spirit of liberty” and “the destiny of America” was embodied “in the first Puritans who landed on [its] shores.”103 For both Tocqueville and Turner, America’s faith in liberty was an important component of American unity. Viewed abstractly, they focused on the importance of constitutional faith for political unity. Winston Churchill also addressed questions of political unity shortly after the Second World War, when he called for the creation of a new Europe. He began his speech by drawing attention to “the tragedy of Europe,” the continent that had so many achievements in arts and science to its credit, the foundation of Christian faith and ethics, and

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the home of the great parent races of the Western world. Yet Europe had also witnessed nationalist wars that almost brought back the Dark Ages. Even among the victors there was a Babel of voices, while the vanquished drifted aimlessly in despair. Nevertheless there was a remedy that “would as by a miracle transform the whole scene” and bring peace and prosperity, according to Churchill. It required the resolve to do right instead of wrong, a decision to move beyond that injustices and hatreds of the past, and an “act of faith in the European family.” The new Europe would be a federal system in which the great nations and the small would have a place based on mutual convenience, and an enlarged patriotism and common citizenship would be given the opportunity to develop. “We must,” Churchill concluded, “re-create the European family in a regional structure called, it may be, the United States of Europe.”104 Others spoke of a new Europe but emphasized that it “will not be made all at once, or according to a single plan.” The proposal of the French government, as articulated by Robert Schuman in 1950, was to diminish the age-old rivalry of France and Germany by immediate action “on one limited but decisive point.” The French proposal focused on the basic elements of industrial production such as steel and coal under a common High Authority, which other European countries would be invited to join.105 A Norwegian minister described the two approaches in this way. “In the Strasbourg Assembly there emerged … two distinct schools of thought.” One group favoured “the constitutional or federalist approach” and wanted to start with “a draft constitution for the United States of Europe.” The other group favoured “the functional approach” and wanted “to take up concrete proposals for practical cooperation in various fields and evolve such intra-European machinery as would be necessary to carry out projects.”106 The functional approach prevailed. But the other side was not silenced. In 2001, for example, Jürgen Habermas published an article explaining “Why Europe Needs a Constitution.”107 Moreover, he began his analysis by referring to Larry Siedentop’s sobering assessment in Democracy in Europe. Siedentop, like some others, was influenced by Madison and Tocqueville, and was especially concerned about the absence of a European constitutional faith that “seized the imagination of European peoples about the direction of their own development, about their own fates.” Instead, the European Union was increasingly characterized by citizen apathy, a “democratic deficit,” and centralized bureaucratic

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management. Not only had “the language of economics” largely driven out “the language of constitutionalism in Europe”; there also existed, Siedentop argued, a crisis of European integration manifested as a crisis of European democracy.108 In another account, the focus of concern is that “politics as usual” has displaced the idealism evident after the Second World War. “Europe,” it has been said, seems to have “a captivating pull only when the going is good, a Golden Calf of plenty to be rejected as matters economic turn sour.” Moreover, although “politics as usual” is seldom fatal, “Europe would … be better served if the current debate addressed not only means but ends too.”109 But addressing ideals and ends is no easy matter, and becomes much more difficult if the European debate turns for inspiration to the modern world’s two most prominent constitutions. “The constitutions of Bagehot and of Dicey,” a British constitutional scholar has written, “are dead or dying.”110 Nor is there any agreement on what is in the process of replacing them. That leaves the US Constitution. In 1878, a future British prime minister described it as “the most wonderful work ever struck off at a given time by the brain and purpose of man.”111 But despite America’s important constitutional achievements, no one familiar with Madison’s theory of factions and the compound republic or Tocqueville’s Democracy in America or Turner’s analysis of American sectionalism can really suppose that the US Constitution along with American-style federalism and the American faith in individual freedom provides a model for a multinational, deeply pluralistic, and far more communitarian Europe. If the European Union is to move beyond functionalism and experiment with a constitutional faith rooted in multinational federalism and a variety of group rights, it may have to look inward and do what Canada has done in its greatest moments of crisis and creativity.112

T h e M o r a l R e a d in g of Cons ti tuti ons Constitutionalism is easiest to understand when the focus is on its antithesis, despotic government; the view, to quote Sir John Fortescue’s fifteenth-century commentary, that “What pleased the prince has the force of law.”113 Two centuries later, in The Spirit of the Laws, Montesquieu described despotic government as arbitrary and irrational government, and compared it to cutting down a tree in order to obtain its fruit.114 But once the focus is shifted away from despotism

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and arbitrary government, the topic becomes much more complex, and is discussed under such headings as “English constitutionalism,” “American constitutionalism,” “Indigenous constitutionalism,” “the new Commonwealth model of constitutionalism,” and so on. Moreover, constitutionalism is not just about the frame of government or just about processes and procedures. It is about moral beliefs and values, which are expressed through a frame of government but also through a Bill of Rights, “the rule of law,” and “the conventions of a constitution.” Real world constitutionalism is plural, multidimensional, and contested. In this respect, the title of one of Ronald Dworkin’s books, Freedom’s Law: The Moral Reading of the American Constitution, is revealing. For Dworkin the legal philosopher, the most significant part of the title is “The Moral Reading,” because it encapsulates his influential critique of legal positivism’s attempt to separate law and morality.115 What is much less controversial is the identification of the American constitution with Freedom’s Law. But Freedom’s Law would be a contentious title for a book on Canadian constitutionalism, because of what it left unsaid. Chief Justice Dickson insisted that the Charter actualized a distinctively Canadian vision of a free and democratic society, in which multiculturalism and equality had real constitutional significance. In the Confederation debates, Cartier praised federalism but insisted that Canadian federalism did not rest on the same values or address the same problems as American federalism. The ethics of Canadian constitutionalism, Lord Sankey suggested in the Persons case, is about the ability to compromise “based upon a consideration of the rights of others.”116 It is not about “the sacred fire of liberty” or about “choosing a single sovereign authority, and making it good.” In the Quebec Secession Reference, the Supreme Court emphasized that minority rights and the rights of Aboriginal peoples were an integral part of the internal architecture of the Canadian Constitution. Aboriginal rights are also one of the most dynamic features of Canadian constitutionalism. Both Canada and the United States reject despotic government, but the moral reading of Canadian constitutionalism does not duplicate American constitutionalism. Finally, in a study of the post-colonial constitutions that emerged after the Second World War, Ivor Jennings singled Jeremy Bentham out for criticism. According to Jennings, Bentham “sat in Westminster working out constitutional principles for countries almost as far apart as China and Peru”; Jennings favoured a more Montesquieuean

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approach.117 When he published The Approach to Self-Government in 1956, Britain’s constitution was one of the two most admired and imitated constitutions in the world. Less than two decades later, another eminent British constitutional scholar published English Law – The New Dimension. It had almost nothing to say about other countries or other constitutions. Instead, it gave voice to growing dissatisfaction with the contemporary British constitution and called for a “new constitutional settlement,” which would include an entrenched Bill of Rights, devolution to Scotland and Wales, and the European treaties. “Given the will,” Sir Leslie Scarman wrote, “the task … presents … no insuperable problems.”118 But he did not answer Anthony King’s question in Does the United Kingdom Still Have a Constitution? Once the changes were made – and many changes have been or are likely to be made – what would be the new constitution’s “fixed principles of reason” and its new constitutional faith?119 The answer will require a Burke, Dicey, or Lord Coke.120 It will also require a new moral reading of constitutionalism, in which British theories about a “single sovereign” and America’s “sacred fire of liberty” contend with “the rights of others” and even with the Canadian idea of a mosaic.

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Notes

P r e fac e   1 Mill, “Thoughts on Parliamentary Reform,” 313.  2 Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, 29–33. Subsequently cited as Confederation Debates. See also Creighton, The Road to Confederation, 141–6.   3 Trudeau, “The Values of a Just Society,” 363; Johnston, Pierre Trudeau Speaks Out on Meech Lake, 36. See also Ackerman and Charney, “Canada at the Constitutional Crossroads,” 132–3.  4 Strayer, Canada’s Constitutional Revolution, 198–204, 251–70.   5 Banting and Simeon, And No One Cheered, 22–5. See also Kelly and Manfredi, Contested Constitutionalism, 3–4, 25–6.  6 Bagehot, The English Constitution, 196–7, 203, 202. See also Dicey, The Law of the Constitution, 39–85.  7 Allen, George Washington, 462. See also Corwin, “The Worship of the Constitution,” 48–9, 54–5.   8 Foot and Kramnick, The Thomas Paine Reader, 81, 93.  9 Koch, Power, Morals, and the Founding Fathers, 105. 10 Current, The Political Thought of Abraham Lincoln, 285, 234. 11 See, for example, Coulthard, “Place against Empire,” 160–70, for the failure to adequately recognize Indigenous land claims in contemporary Canada; and Laforest, “The Internal Exile of Quebecers in the Canada of the Charter,” 258–60. 12 Edwards v. Attorney General of Canada, 136. 13 Frye, Divisions on a Ground, 81. 14 See the account of Canada as a country based on incomplete conquests in Russell, Canada’s Odyssey, 423–54.

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15 Delgamuukw v. British Columbia, 273. 16 LaSelva, The Moral Foundations of Canadian Federalism, 22–30, 37–41. 17 Confederation Debates, 60. 18 Farrand, Records of the Federal Convention of 1787, 2: 643. 19 Frye, The Modern Century, 122–3. See also Maclure, Quebec Identity, 19–22, on contemporary Quebec’s “melancholy nationalists”; and Ladner and McCrossan, “The Road Not Taken,” 276–80, on Aboriginal rights and failed attempts at decolonization. 20 Berlin, “Montesquieu,” 157. 21 Shklar, Montesquieu, 1, 111, 126. 22 Mill, On Bentham and Coleridge, 122–4. 23 N. MacCormick, “The English Constitution, the British State, and the Scottish Anomaly,” 289. 24 Wilkinson, American Indians, Time, and the Law, 122. 25 Crevecoeur, Letters from an American Farmer, 39. 26 Borrows, Recovering Canada, 149, 156. Tully, Strange Multiplicity, 24–9, 140–5. 27 Gunther, John Marshall’s Defence of McCulloch v. Maryland, 34. 28 Trevelyan, The English Revolution 1688–1689, 93–107. Butterfield, The Englishman and His History, v–vii, 7, 83–102. 29 Bogdanor, The New British Constitution, xi–xiii, 24–6, 230–1, 309–10. He writes (xi): “We have been living through an unprecedented period of constitutional change … which began in 1997 and shows no sign of coming to an end.” With the United Kingdom’s referendum decision – on 23 June 2016 – to leave the European Union, this statement becomes even more important. 30 See the discussion of Woodrow Wilson in Tuveson, Redeemer Nation, 211–13. Cronon, The Political Thought of Woodrow Wilson, 529. See also Niebuhr, The Irony of American History, 24–6, 65–88, 169–74. 31 Levinson, Constitutional Faith, 9–17. 32 Bailyn, The Ideological Origins of the American Revolution, 198–203. 33 Franklin as quoted in Marshall, Parliamentary Sovereignty and the Commonwealth, 55. For “Mortall God,” see Hobbes, Leviathan, 120. 34 Marshall, Parliamentary Sovereignty and the Commonwealth, 47. 35 McIlwain, Constitutionalism Ancient and Modern, 21–2, 145–6. 36 Dicey, The Law of the Constitution, 183–283, 406–14, v–vi. Dicey, England’s Case against Home Rule, 290. See also Bingham, The Rule of Law, 66–8, 171–4.

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c ha p t e r o n e   1 Jennings, “Magna Carta and Constitutionalism in the Commonwealth,” 81–2, 85, 97–8. See also Maitland, The Constitutional History of England, 15.  2 Allen, George Washington, 518, 515, 462. See also Corwin, “The Worship of the Constitution,” 48–9, 54–5.  3 Preliminary Report of the Royal Commission on Bilingualism and Biculturalism, 13, 50, 113, 134–9.  4 Strayer, Canada’s Constitutional Revolution, 219–43, for a discussion of “Frank Scott, Pierre Trudeau, and the Charter Idea.”   5 For the political activities of the young Trudeau, see Nemni, Young Trudeau, 115, 123, 151, 205–11, 229, 267–76; English, Citizen of the World, 34–7, 49, 73–7, 90, 101–2.   6 LaSelva, “To Begin the World Anew,” 11–18.  7 Trudeau, Federalism and the French Canadians, 178–9; Trudeau, Conversation with Canadians, 32–3; Trudeau, “Statement on Multiculturalism,” 349.   8 Trudeau, “The Values of a Just Society,” 363.  9 Johnston, Pierre Trudeau Speaks Out on Meech Lake, 10, 105. 10 Trudeau, Memoirs, 366–8. 11 Nemni, Young Trudeau, 174, 302–10; English, Citizen of the World, 123, 128–34. 12 Trudeau, Memoirs, 47, 39, 38, 40, 47, 48. 13 Paquet, “A Sermon on the Vocation of the French Race in America,” 154, 156, 157. 14 Both documents are reprinted in R. Cook, French-Canadian Nationalism. For a discussion of classical conceptions of destiny, see Bowra, From Virgil to Milton. 15 Trudeau, The Asbestos Strike, 6, 66. 16 Trudeau, Approaches to Politics, 33, 87. 17 Trudeau, Against the Current, 28. 18 Both essays are reprinted in Trudeau, Federalism and the French Canadians, 168, 188–9, 203. 19 Trudeau, Conversation with Canadians, 91. 20 Aspects of Trudeau’s changing dream of Canada are discussed in Nemni, Young Trudeau, 150–1, 160–4, 274. See also English, Citizen of the World, 251–2, 298–9, 372–5, 403–9, 472–3. These two books are especially noteworthy for documenting the (ambiguous) separatist and ultranationalist leanings of the young Trudeau.

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21 Johnston, Pierre Trudeau Speaks Out on Meech Lake, 10. 22 Cairns, “Constitutional Reform,” 48, 62, 59. 23 Russell, Constitutional Odyssey, vi. See also Russell, Canada’s Odyssey, 18–19. 24 Robertson, Memoirs of a Very Civil Servant, 380, 384. 25 Trudeau, Against the Current, 28; Trudeau, Federalism and the French Canadians, 202–3. See also English, Citizen of the World, 242–3; Strayer, Canada’s Constitutional Revolution, 271–2. 26 Grant, Lament for a Nation, x–xii. See also LaSelva, “To Begin the World Anew,” 3–11. 27 Grant, Technology and Justice, 94–5, 129–30. 28 Grant, Lament for a Nation, 50–1. 29 Trudeau, “An Appeal for Realism in Politics,” 339, 341, 345–7. 30 Grant, Lament for a Nation, 85. 31 Christian, George Grant: Selected Letters, 250. 32 Trudeau, Conversation with Canadians, 51–7. 33 Christian, The George Grant Reader, 105, 107. 34 Grant, Lament for a Nation, ix, 4, 71. 35 Christian, George Grant: Selected Letters, 243. 36 Christian, The George Grant Reader, 207–9, 256. 37 Grant, Lament for a Nation, 6, 70–3; Grant, English-Speaking Justice, 64–5. 38 See, for example, Creighton, The Road to Confederation, 141–6; Creighton, Canada’s First Century, 350–6; Creighton, Towards the Discovery of Canada, 194–228. 39 Confederation Debates, 33. 40 Vaughan, The Canadian Federalist Experiment, 62. 41 Shakespeare, Macbeth, 160. 42 See the discussion of the failure of Macdonald’s centralism in Vipond, Liberty and Community, 1–13. 43 Vaughan, The Canadian Federalist Experiment, 126, 133, 153–7, 175, 179–80; F. Morton and Knopff, The Charter Revolution and the Court Party, 149–66. 44 Compare Ladner and McCrossan, “The Road Not Taken,” 276–80; and Russell, Canada’s Odyssey, 428–40. 45 C. Berger, Imperialism and Nationalism, 24. 46 G. Smith, Canada and the Canadian Question, 52. 47 See, for example, Borrows, Canada’s Indigenous Constitution, 125–228. 48 Cardinal, The Unjust Society, 1, 13, 25, 166–7. 49 Trudeau, Conversation with Canadians, 21.

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Notes to pages 15–23

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50 Cairns, Citizens Plus, 113. 51 Royal Commission on Aboriginal Peoples, Aboriginal Self-Government: Restructuring the Relationship, 4–5, 163–244; Assembly of First Nations, Our Nations, Our Governments: Choosing Our Own Path, 18–26. 52 Flanagan, First Nations? Second Thoughts, 3, 7, 104, 107, 7, 194. 53 Kymlicka, “Liberalism, Individualism, and Minority Rights,” 183, 182, 190. 54 Kymlicka, Multicultural Citizenship, 186. 55 Turner, This Is Not a Peace Pipe, 6–8, 69–70. 56 Mercredi and Turpel, In the Rapids, 35–6. 57 Ellmann, Yeats, 236. 58 Huntington, “The Clash of Civilizations?” 39–42. 59 Giddens, Runaway World, 85–100. 60 Tully, Strange Multiplicity, xi. 61 Tully, Strange Multiplicity, 5, 62–70, 91, 138–9, 184–7, 28. See also Tully, “Modern Constitutional Democracy and Imperialism,” 480–93; and the reflections in M. Williams, “On the Use and Abuse of Recognition in Politics,” 9–17. 62 Sheppard, “The Cree Intervention in the Canadian Supreme Court Reference on Quebec Secession,” 850–4; Turpel, “Does the Road to Quebec Sovereignty Run Through Aboriginal Territory?,” 103–5. 63 Reference re Secession of Quebec, 427, 422, 417. 64 Quoted in Levinson, Constitutional Faith, 3. 65 Holmes dissenting in US v. Schwimmer, 654. 66 Levinson, Constitutional Faith, 193. 67 Hand, The Spirit of Liberty, 143–5. 68 Horowitz, “Conservatism, Liberalism, and Socialism in Canada,” 143. 69 Creighton, The Road to Confederation, 141–6. 70 Reference re Secession of Quebec, 405, 421–2, 407. 71 Smiley, The Canadian Political Nationality, 9, 128–35. 72 Borrows, Recovering Canada, 149, 156. See also Borrows, Canada’s Indigenous Constitution, 126, where Borrows discusses Cartier’s ideas. 73 Webber, Reimagining Canada, 23. See also Webber, “The Generosity of Toleration,” 270, 288.

c h a p t e r t wo  1 Trudeau, Memoirs, 323.  2 Creighton, The Road to Confederation, 143, 142; Lipset, Continental Divide, 1–4.

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Notes to pages 23–9

 3 Grant, Lament for a Nation, 3–4, 33, 54–7, 68–72; Creighton, Canada’s First Century, 355–6; Cairns, Constitution, Government, and Society in Canada, 230–4.  4 Trudeau, A Canadian Charter of Human Rights, 9–12. See also Scott, Civil Liberties and Canadian Federalism, 56–7.  5 Shklar, Montesquieu, 111.   6 Berlin, “Montesquieu,” 157.  7 Ceaser, Designing a Polity, 31–7.  8 Montesquieu, The Spirit of the Laws, 310; Montesquieu, Selected Political Writings, 207.   9 Romanow, Whyte, and Leeson, Canada … Notwithstanding, 259. 10 Mansfield, America’s Constitutional Soul, ix, 8–17, 216–18. 11 Cairns, Charter versus Federalism, 6. 12 Grant, Lament for a Nation, 62–5, 71; Lipset, Continental Divide, 93. 13 Lipset, Continental Divide, 226, 101–6, 225, 1–2, 3, 101. See also Farthing, Freedom Wears a Crown, 37–9, 119–32. 14 Meyers, The Mind of the Founder, 205. See also Rumble, “James Madison on the Value of Bills of Rights,” 130–3. 15 Adair, Fame and the Founding Fathers, 144–51, 190–4; Ceaser, Designing a Polity, 120–6. 16 Becker, The Declaration of Independence, 24–8. See also Diamond, “The Declaration and the Constitution,” 45–55. 17 Richter, The Political Theory of Montesquieu, 235; Montesquieu, Selected Political Writings, 172; Montesquieu, The Spirit of the Laws, 126. 18 Storing, The Anti-Federalist, 210. 19 Ceaser, Designing a Polity, 120–4; Mansfield, America’s Constitutional Soul, 115–27. 20 Hamilton, Madison, and Jay, The Federalist, 338. Subsequently cited as Hamilton, The Federalist. 21 Hamilton, The Federalist, 126–7. 22 Ibid., 158–9. 23 Adair, Fame and the Founding Fathers, 132–51. 24 Hamilton, The Federalist, 135, 356, 136. 25 Richter, The Political Theory of Montesquieu, 244, 245; Montesquieu, Selected Political Writings, 181, 182; Montesquieu, The Spirit of the Laws, 155, 157. 26 Montesquieu, The Spirit of the Laws, 156–66. 27 Bailyn, The Ideological Origins of the American Revolution, 296–301. See also Corwin, American Constitutional History, 22–3. 28 Amar, The Bill of Rights, xii. See also Sandel, Democracy’s Discontent, 33–9.

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Notes to pages 29–35

243

29 Storing, The Anti-Federalist, 58. 30 Amar, The Bill of Rights, 133. 31 Rutland, The Birth of the Bill of Rights 1776–1791, 163–93, 219–21. 32 Storing, What the Anti-Federalists Were For, 15–23, 64–70. 33 Hamilton, The Federalist, 534. 34 Ajzenstat, The Canadian Founding, 40–66. 35 Bagehot, The English Constitution, 202. Bagehot devoted a chapter to criticizing the “supposed checks and balances” of the English Constitution. 36 Confederation Debates, 33, 44. 37 Brassard v. Langevin (1877), quoted in Schmeiser, Civil Liberties in Canada, 1. 38 Penton, Jehovah’s Witnesses in Canada, 202–23. 39 How, “The Case for a Canadian Bill of Rights,” 763, 796. 40 Boucher v. the King, 369. 41 Saumur v. City of Quebec, 299. 42 Roncarelli v. Duplessis, 122. 43 Keir and Lawson, Cases in Constitutional Law, 11–14. 44 T. Berger, Fragile Freedoms, 182. 45 Dicey, Law of the Constitution, 183, 197, 429. See also Goldsworthy, The Sovereignty of Parliament, 221–8. 46 Dicey, Law of the Constitution, 165–6. 47 Ibid., 138–80. 48 Scott, The Canadian Constitution and Human Rights, 50. 49 Verney, Three Civilizations, Two Cultures, One State, 152. 50 Cairns, “The Judicial Committee and Its Critics,” 301. 51 Dicey, Law of the Constitution, 168. 52 Laskin, “Constitutionalism in Canada,” 173. 53 Russell, Leading Constitutional Decisions, xiv. 54 Lower, Evolving Canadian Federalism, 25–6. 55 Craig, Lord Durham’s Report, 22–3; Confederation Debates, 509, 514. 56 Confederation Debates, 10. 57 Ormsby, The Emergence of the Federal Concept in Canada, 122–5. 58 Ajzenstat, The Canadian Founding, 88–91; Scott, Civil Liberties and Canadian Federalism, 18–27. 59 Waite, The Life and Times of Confederation, 115. 60 Grant, Lament for a Nation, 68–71; Lipset, Continental Divide, 44; Vaughan, The Canadian Federalist Experiment, 7–14, 70–3. 61 Meyers, The Mind of the Founder, 208. See also Storing, What the AntiFederalists Were For, 71. Storing observed: “The Federalists, moreover,

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Notes to pages 35–9

reminded Americans that the true principle of the Revolution was not hostility to government but hostility to tyrannical government.” 62 Montesquieu, The Spirit of the Laws, 310–33; Ceaser, Designing a Polity, 2011: 32–4; Durkheim, Montesquieu and Rousseau, 40–4. 63 Curtis, No State Shall Abridge, 27–56, 91, 212–20. 64 Amar, The Bill of Rights, 215. See also Cover, “The Origins of Judicial Activism in the Protection of Minorities,” 1287. 65 Dworkin, Taking Rights Seriously, 147, 142. 66 Ibid., 198–9. See also Rawls, A Theory of Justice, 179–83, 251–7. 67 For Gitlow, see Cortner, The Supreme Court and the Second Bill of Rights, 59; Curtis, No State Shall Abridge, 197–8. 68 Horowitz, The Warren Court and the Pursuit of Justice, 74–98. 69 Dworkin, Taking Rights Seriously, 137, 149. 70 Brown v. Board of Education, 483. 71 Levy, Judicial Review and the Supreme Court, 33–6. 72 Cooper v. Aaron, 1. 73 See Bickel, The Least Dangerous Branch, 247–72; Cox, The Role of the Supreme Court in American Government, 89–90. 74 Meyers, The Mind of the Founder, 221–6. 75 Amar, The Bill of Rights, 22–3. See also Storing, “The Constitution and the Bill of Rights,” 29–45. 76 Beard, The Supreme Court and the Constitution, 55–8; Agresto, The Supreme Court and Constitutional Democracy, 10, 96–138. 77 Dworkin, A Matter of Principle, 359; Sandel, “The Procedural Republic and the Unencumbered Self,” 93–5. 78 Ignatieff, The Rights Revolution, 7; Elkins, “Facing Our Destiny,” 702–8; Glendon, Rights Talk, 38–9, 164–7. 79 Cairns, Disruptions, 179. See also Raz, “Free Expression and Personal Identification,” 9–10. 80 Brodie, Friends of the Court, xiv–xvii, 123–7; Cairns, Charter versus Federalism, 74–95; F. Morton and Knopff, The Charter Revolution and the Court Party, 149–66. 81 Trudeau, A Canadian Charter of Human Rights, 9–12; Trudeau, Federalism and the French Canadians, 53; Kelly, Governing with the Charter, 80–103. 82 Confederation Debates, 511. 83 Trudeau, Conversation with Canadians, 91; Cairns, Disruptions, 43–4; Russell, “The Political Purposes of the Canadian Charter of Rights and Freedoms,” 31–43. 84 Trudeau, Federalism and the French Canadians, xxii–xxiii; Trudeau, “The Values of a Just Society,” 361.

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Notes to pages 39–45

245

  85 Trudeau, “The Values of a Just Society,” 363; Trudeau, Federalism and the French Canadians, 53.  86 Cairns, Disruptions, 166–9. See also Kome, The Taking of Twenty-Eight.   87 Trudeau, “The Values of a Just Society,” 371; Manfredi, Judicial Power and the Charter, 169–95.  88 Cairns, Charter versus Federalism, 85.  89 Johnston, Pierre Trudeau Speaks Out on Meech Lake, 8.  90 Trudeau, Conversation with Canadians, 33; Trudeau, Federalism and the French Canadians, 178–9.  91 Taylor, Reconciling the Solitudes, 165, 181–4; Laforest, Trudeau and the End of a Canadian Dream, 107–49; Russell, Constitutional Odyssey, 228–37.  92 Dworkin, Freedom’s Law, 217, 218, 221.  93 R. v. Keegstra, 225.  94 R. v. Butler, 167–9.  95 Reference re Secession of Quebec, 404–22. See also Lower, “Two Ways of Life,” 15, 28; W. Morton, “Clio in Canada,” 49.  96 Reference re Secession of Quebec, 405, 422.  97 Confederation Debates, 59–61; Blattberg, Shall We Dance?, 7–9, 136–45.  98 Reference re Secession of Quebec, 418.  99 Vriend v. Alberta, 436. 100 Vriend v. Alberta, 438–9. See also Hogg and Bushell, “The Charter Dialogue,” 79–96. 101 Morris, Alexander Hamilton and the Founding of the Nation, 143–4.

c h a p t e r th re e    1 Gardbaum, “The New Commonwealth Model of Constitutionalism,” 709–10, 719–27, 742–4, 756–60.    2 Trudeau, “The Values of a Just Society,” 371. See also Strayer, Canada’s Constitutional Revolution, 113–14, 199, 266–70.    3 Quoted in Manfredi, Judicial Power and the Charter, 5.    4 Whyte, “On Not Standing for Notwithstanding,” 355.    5 P. Weiler, “Of Judges and Rights, Or Should Canada Have a Constitutional Bill of Rights?,” 222, 232–3.    6 Russell, “Standing Up for Notwithstanding,” 295, 308–9.   7 Trudeau, “A Mess That Deserves a Big no ,” 44.   8 Alliance des Professeurs v. A.-G. Que., 354   9 Ford v. Quebec, 598–9. See Weinrib, “Learning to Live with the Override,” 541.

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Notes to pages 46–52

10 Lougheed, “Why a Notwithstanding Clause?,” 4, 2, 16. 11 Ibid., 3–4, 14, 13. 12 Trudeau, The Asbestos Strike, 330–6. 13 Trudeau, Conversation with Canadians, 91–4. 14 Trudeau, “Values of a Just Society,” 363. 15 Russell, “The Effect of a Charter of Rights on the Policy-Making Role of Courts,” 32. 16 Manfredi, Judicial Power and the Charter, 22. 17 Lougheed, “Why a Notwithstanding Clause?,” 16, 18. 18 Trudeau, “Values of a Just Society,” 372. 19 Tocqueville, Democracy in America, 1: 155, 290. 20 See Schneiderman, “The Judiciary in Trudeau’s Constitutional Vision,” 146–51. 21 Trudeau, Federalism and the French Canadians, xxii–xxiii; Trudeau, “A Mess That Deserves a Big no ,” 48. 22 Warhaft, Francis Bacon, 187. 23 Confederation Debates, 347. 24 Ibid., 59. 25 Ibid., 32–3. 26 Current, The Political Thought of Abraham Lincoln, 176. 27 Diamond, “The Declaration and the Constitution,” 47. 28 Hamilton, The Federalist, 357. 29 Current, The Political Thought of Abraham Lincoln, 234. 30 Amar, The Bill of Rights, 160, 190. 31 Cox, The Warren Court, 12. 32 Wechsler, Principles, Politics, and Fundamental Law, 27, 43–8; Bickel, The Supreme Court and the Idea of Progress, 174–5. 33 Hand, The Bill of Rights, 73. 34 Thayer, John Marshall, 86. 35 Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” 60–3. 36 Ely, Democracy and Distrust, 75–7. 37 Rostow, “The Democratic Character of Judicial Review,” 74. 38 McCloskey, The American Supreme Court, 9–22. See also Ackerman, “Discovering the Constitution,” 1030–1, 1049–51. 39 Rostow, “The Democratic Charter of Judicial Review,” 78. 40 Hamilton, The Federalist, 509 41 Roosevelt, fdr ’s Fireside Chats, 83–95. See also Jackson, The Struggle for Judicial Supremacy, 187–96. 42 Agresto, The Supreme Court and Constitutional Democracy, 134.

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Notes to pages 52–8

247

43 Perry, The Constitution in the Courts, 197. 44 P. Weiler, “Rights and Judges in a Democracy,” 54, 85. 45 Heard, Canadian Constitutional Conventions, 147. 46 P. Hughes, “Section 33 of the Charter,” 169. 47 Manfredi, Judicial Power and the Charter, ix; Hiebert, “Is It Too Late to Rehabilitate Canada’s Notwithstanding Clause?,” 169. 48 Trudeau, “A Mess That Deserves a Big no ,” 44. 49 Monahan, Politics and the Constitution, 118–19. 50 Monahan, Meech Lake, 166. 51 Ibid., 66–7, 169. 52 Russell, “Standing Up for Notwithstanding,” 305. 53 C. Cook, Constitutional Predicament, 243. 54 Johnston, Pierre Trudeau Speaks Out on Meech Lake, 8. 55 Trudeau, “A Mess That Deserves a Big no ,” 58. 56 Ibid., 47–8. 57 Diamond, “What the Framers Meant by Federalism,” 35. 58 Diamond, “The Federalist’s View of Federalism,” 40. 59 Reference re Secession of Quebec, 412, 405, 407. 60 See, for example, Kelly, Governing with the Charter, 181–221; Schertzer, The Judicial Role in a Diverse Federation, 13–18, 221–70. 61 Cairns, Disruptions, 44. 62 F. Knopff and Morton, “Nation-Building and the Canadian Charter of Rights and Freedoms,” 174. 63 R. v S.(S.), 139. 64 Haig v. Canada, 612. 65 Cairns, Charter versus Federalism, 76, 112; Hogg, “Federalism Fights the Charter of Rights,” 249–50; Kelly, “Reconciling Rights and Federalism during the Review of the Charter of Rights and Freedoms,” 346–50; Clarke, “Beyond the Democratic Dialogue, and towards a Federalist One,” 293–300. 66 Ford v. Quebec, 628–9. See also Maclure, Quebec Identity, 104–6; MacMillan, The Practice of Language Rights in Canada, 117–19. 67 Hogg and Bushell, “The Charter Dialogue,” 83. 68 Ibid., 80. 69 Manfredi and Kelly, “Six Degrees of Dialogue,” 513. 70 Tushnet, “Policy Distortion and Democratic Debilitation,” 296. 71 Foner, Free Soil, Free Labor, Free Men, 308–17. 72 Angle, Created Equal?, 386–94; Horwitz, The Warren Court and the Pursuit of Justice, xi–xii, 15–31. 73 Hiebert, Charter Conflicts, 18–19.

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Notes to pages 58–66

74 Romanow, Whyte, and Leeson, Canada … Notwithstanding, 259. 75 Leeson, “Section 33, The Notwithstanding Clause,” 321. See also J. Cameron, “The Charter’s Legislative Override,” 135. 76 Hogg and Bushell, “The Charter Dialogue,” 83. 77 Bork, Coercing Virtue, 78. 78 Ibid., 22, 194, 191, 68, 78, 195. See also F. Morton and Knopff, The Charter Revolution and the Court Party. 79 Bork, Coercing Virtue, 154. 80 Glendon, Rights Talk, 9, 13, 165.

c ha p t e r f o u r  1 Bickel, The Least Dangerous Branch, 16–17.  2 Vriend v. Alberta, 436.  3 Ely, Democracy and Distrust, vii, 101–4.   4 Powell, “Carolene Products Revisited,” 1087. See also Tribe, Constitutional Choices, 10.   5 Hogg and Bushell, “The Charter Dialogue,” 105.  6 Vriend v. Alberta, 439.  7 Dworkin, A Matter of Principle, 35.  8 Marbury v. Madison, 137. Hamilton, The Federalist, 492.   9 C. Black, The People and the Court, 27, 26, 27. 10 Beard, The Supreme Court and the Constitution, 69, 96. 11 Bickel, The Least Dangerous Branch, 15. 12 Corwin as quoted in Westin’s introduction to Beard, The Supreme Court and the Constitution, 28. 13 Corwin, “The Progress of Constitutional Theory,” 2. 14 See Corwin, The Higher Law Background of American Constitutional Law and Corwin, The Doctrine of Judicial Review. 15 Corwin, “The Progress of Constitutional Theory,” 22. 16 Wood, The Creation of the American Republic, 612. 17 Meyers, The Mind of the Founder, 88. 18 Hamilton, The Federalist, 136. 19 Beard, The Supreme Court and the Constitution, 56. See also Rakove, Interpreting the Constitution, 179–94. 20 Ackerman, We the People, 1: 165–99; Diamond, As Far as Republican Principles Will Admit, 17–36. 21 Russell, Leading Constitutional Decisions, xi. 22 Lederman, Continuing Canadian Constitutional Dilemmas, 171.

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Notes to pages 66–72

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23 Strayer, Judicial Review of Legislation in Canada, 37. For Lord Coke’s views on judicial review, see Plucknett, “Bonham’s Case and Judicial Review,” 36, 49–54, 58–9, 68–70. 24 J. Smith, “The Origins of Judicial Review in Canada,” 121. 25 La Forest, Disallowance and Reservation of Provincial Legislation, 6–7. 26 Haldane, “The Work for the Empire of the Judicial Committee of the Privy Council,” 150. 27 Cairns, “The Judicial Committee and Its Critics,” 320. 28 Trudeau, Federalism and the French Canadians, 198. 29 Vaughan, “Critics of the Judicial Committee of the Privy Council,” 512, 539. 30 Gunther, John Marshall’s Defense of McCulloch v. Maryland, 112. This is the substance of “Hampden’s” critique. 31 Gunther, John Marshall’s Defense of McCulloch v. Maryland, 195. 32 Wood, The Creation of the American Republic, 466–7, 532, 550–1, 614–15; Morgan, Inventing the People, 281. 33 Ackerman, “Discovering the Constitution,” 1049–57, 1060–1; Wood, The Creation of the American Republic, 531–6. 34 Tocqueville, Democracy in America, 1: 60, 269. 35 Ely, Democracy and Distrust, 71. 36 Bickel, The Least Dangerous Branch, 112, 200, 70–1. 37 Ibid., 68, 69, 254, 258. 38 Ely, Democracy and Distrust, 75. 39 Jackson, The Struggle for Judicial Supremacy, viii–xvii, 283–5. See also Cover, “The Origins of Judicial Activism in the Protection of Minorities,” 1287. 40 U.S. v. Carolene Products Co., 152–3. 41 Lusky, “Footnote Redux,” 1097–9. 42 Ely, Democracy and Distrust, 92, 101, 80, 87. 43 Ibid., 153, 165, 103, 87, 86. See also Ely, “Concurring in the Judgment Except as to the Remedy,” in Balkin, What Brown v. Board of Education Should Have Said, 135. 44 Tribe, Constitutional Choices, 13–14. 45 Powell, “Carolene Products Revisited,” 1091. 46 See also Ackerman, “Beyond Carolene Products,” 723, 743. 47 Ely, Democracy and Distrust, 100. 48 Current, The Political Thought of Abraham Lincoln, 55. 49 McCloskey, The American Supreme Court, 11–13. 50 Cox, The Role of the Supreme Court in American Government, 117.

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Notes to pages 72–80

51 Current, The Political Thought of Abraham Lincoln, 234. 52 Preamble to the Canadian Charter of Rights and Freedoms, 1982. See also Ackerman and Charney, “Canada at the Constitutional Crossroads,” 132–4. 53 Charlottetown Accord, in C. Cook, Constitutional Predicament, 230. 54 Trudeau, “The Values of a Just Society,” 363. 55 Trudeau, Conversation with Canadians, 91. 56 Lougheed, “Why a Notwithstanding Clause?,” 3, 10. 57 R. v. Keegstra, 225. 58 Romanow, Whyte, and Leeson, Canada … Notwithstanding, 259. 59 Sigurdson, “Left- and Right-Wing Charterphobia in Canada,” 96. 60 Hogg and Bushell, “The Charter Dialogue,” 77. 61 Ibid., 80, 105. 62 Manfredi and Kelly, “Six Degrees of Dialogue,” 515. 63 F. Morton, “Dialogue or Monologue?,” 111. 64 F. Morton and Knopff, The Charter Revolution and the Court Party, 149– 66. See also “the mischief of dialogue theory” in Huscroft, “Rationalizing Judicial Power,” 54–60. 65 Hogg, Bushell Thornton, and Wright, “Charter Dialogue Revisited,” 5, 26, 27, 29. 66 Hogg, Bushell Thornton, and Wright, “A Reply on ‘Charter Dialogue Revisited,’” 201–2. 67 Roach, The Supreme Court on Trial, 6. 68 Ibid., x, 50. 69 LaSelva, “Only in Canada,” 394–6. See also Clarke, “Beyond the Democratic Dialogue, and towards a Federalist One,” 296–300, 311; Schertzer, The Judicial Role in a Diverse Federation, 271–92. 70 Reference re Secession of Quebec, 410, 412, 414, 412, 415. 71 Vriend v. Alberta, 437, 438, 439. 72 Trudeau, “The Values of a Just Society,” 363. 73 Bentham, “Anarchical Fallacies,” 53. 74 Marshall, “Patriating Rights – With Reservations,” 73, 84. 75 Jacobs and White, The European Convention on Human Rights, 426. 76 Lord Jowitt quoted in Lester, “Fundamental Rights,” 51–2. 77 Lester, “Fundamental Rights,” 61, 72. 78 Bingham, “The European Convention on Human Rights,” 8, 11. 79 Austin, The Province of Jurisprudence Determined, 253–76. Gough, Fundamental Law in English Constitutional History, chapter XII: “The Last of Fundamental Law.” 80 Mann, “Britain’s Bill of Rights,” 513.

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 81 Jennings, The Law and the Constitution, 170.  82 Hart, The Concept of Law, 64–76, 107–114. See also Wade, “The Basis of Legal Sovereignty, 184–97.” Wade, Constitutional Fundamentals, 24–40.  83 Dworkin, Taking Rights Seriously, 23–8, 39–45.  84 Dworkin, Law’s Empire, 255.  85 Allan, Law, Liberty, and Justice, 10, 282. See also Goldsworthy, The Sovereignty of Parliament, 246–72.   86 Coke’s opinion is reprinted in Pound, The Development of Constitutional Guarantees of Liberty, 173. See also Gough, Fundamental Law in English Constitutional History, 30–47.  87 Laws, The Common Law Constitution, 11–30.  88 Jacobs, The Sovereignty of Law, 4–7.  89 Bingham, The Rule of Law, 164–5.  90 Kavanagh, Constitutional Review under the uk Human Rights Act, 9–13.  91 Jackson, The Struggle for Judicial Supremacy, vi, 27, 321. See also Laski, “The Judicial Function,” 99, 111–15, 120.  92 Gardbaum, The New Commonwealth Model of Constitutionalism, 25–36. See also Griffith, The Politics of Judiciary, 321–9.   93 Tushnet, “Weak-Form Judicial Review,” 230–1.   94 Marshall, “Patriating Rights – With Reservations,” 83; Marshall, “The Constitution,” 61.  95 Gearty, Can Human Rights Survive?, 91–8.  96 Kavanagh, Constitutional Review under the uk Human Rights Act, 421.  97 Bogdanor, Devolution, 243.  98 Dicey, England’s Case against Home Rule, 178–9, 188, 290.   99 Gardbaum, “The New Commonwealth Model of Constitutionalism,” 719, 745–8. 100 Marshall, “The Constitution,” 61–2. 101 Fiss, “The Forms of Justice,” 9. 102 Bobbitt, Constitutional Fate, 94–5. 103 Ackerman, We the People, 1: 3–33. 104 Levinson, Constitutional Faith, 9–17. See also Lerner, “Constitution and Court as Symbols,” 1290.

c ha p t e r f i ve   1 Dicey, The Law of the Constitution, 139–40, 245, 248.    2 Ibid., 248–51. See also Ewing and Gearty, Freedom under Thatcher, 7–12.   3 Marshall, Constitutional Theory, 161.    4 Schauer, “The Exceptional First Amendment,” 35–6.

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Notes to pages 89–97

  5 Weinstein, “An Overview of American Free Speech Doctrine and Its Application to Extreme Speech,” 91.  6 United States v. Schwimmer, 654–5. See also Lewis, Freedom for the Thought That We Hate, 37–8.  7 Sumner, The Hateful and the Obscene, 185–203. See also Moon, The Constitutional Protection of Freedom of Expression, 219.  8 Report of the Special Committee on Hate Propaganda in Canada, 24–5.   9 Magnet, “Hate Propaganda in Canada,” 229, 244. See also Sniderman, The Clash of Rights, 64. 10 Walker, Hate Speech, 4. 11 Hare, “Blasphemy and Incitement to Religious Hatred,” 293–6, 300–10. 12 Schenck v. United States, 52. 13 On Holmes, see Gunther, “Learned Hand and the Origins of Modern First Amendment Doctrine,” 719–20, 732–41. 14 Abrams v. United States, 630. 15 Pound and Chafee as quoted in Polenberg, Fighting Faiths, 241. 16 Whitney v. California, 377, 375–6. 17 For Holmes’s skepticism, see Dworkin, Freedom’s Law, 340–1. 18 Schauer, Free Speech, 92–5. 19 Meiklejohn, Political Freedom, 26. 20 Chaplinski v. New Hampshire, 571–2. 21 Roth v. United States, 481, 483, 485, 484, 487, 489. 22 Miller v. California, 24. 23 American Booksellers v. Hudnut, 617, 619, 618. 24 Matsuda, Words That Wound, 7–10. 25 R.A.V. v. St Paul, 315, 320, 323, 326. 26 Levy, Freedom of Speech and Press in Early American History, xiii, 196–202, 236–7. 27 Regina v. Keegstra, 296. 28 Hare, “Blasphemy and Incitement to Religious Hatred,” 293–300. Levy, Blasphemy, 204–36, 535–79. D. Williams, “Hate Speech in the United Kingdom,” 92–5. 29 Report of the Special Committee on Hate Propaganda in Canada, 61. 30 Regina v. Keegstra , 205–6. 31 Ibid., 300. 32 Ibid., 225, 240–1. 33 Ibid., 221–6, 223, 226. 34 Weinstein, “An American’s View of the Canadian Hate Speech Decisions,” 179. 35 Ibid., 205.

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36 Regina v. Keegstra, 274–81, 300–1, 304, 312. 37 Regina v. Butler, 162, 143, 150–1, 147, 163–4, 156. 38 MacKinnon as quoted in Lacombe, Blue Politics, 136. 39 MacKinnon, Only Words, 102, 97–9, 104, 85. 40 Dworkin, Freedom’s Law, 215, 218, 219, 221. Dworkin, A Matter of Principle, 335. 41 Berlin, The Crook Timber of Humanity, 10–11; Gallie, Philosophy and the Historical Understanding, 158–68. 42 Taylor, “Political Theory and Practice,” 85. 43 Wigmore, “Abrams v. US,” 552, 561, 559. See also Polenberg, Fighting Faiths, 248–56. 44 Bollinger, The Tolerant Society, 237. 45 Schauer, “The Exceptional First Amendment,” 30, 43, 48, 50. 46 Schauer, Free Speech, 86, 162–3, 81, 86. 47 Abrams v. United States, 630. 48 Levinson, Constitutional Faith, 9–17, 87–9, 126–54, 193; Bellah, “Civil Religion in America,” 25, 36; Hartz, The Liberal Tradition in America, 10–14, 56–62, 286, 305–9. 49 United States v. Schwimmer, 655. 50 Bollinger, The Tolerant Society, 243, 246–7; United States v. Schwimmer, 655. 51 Sumner, The Hateful and the Obscene, 186, 200, 203. 52 Ibid., 78–9, 120. 53 Ibid., 200. 54 Sumner, “Hate Propaganda and Charter Rights,” 171, 172. 55 Ibid., 173. 56 Regina v. Keegstra, 236. 57 Ibid., 292. 58 Report of the Special Committee on Hate Propaganda in Canada, preface, 33, 25. 59 Mahoney, “Freedom of Expression,” 93. 60 Regina v. Keegstra, 234. 61 Moran, “Talking about Hate Speech,” 546. 62 Greenawalt, Fighting Words, 122. 63 Scarman, English Law – The New Dimension, 76. 64 Himmelfarb, On Liberty and Liberalism, 309–38. 65 Mill, On Bentham and Coleridge, 122–4. 66 Meiklejohn, Political Freedom, 132. 67 Meikljohn as quoted in Kalven, “The New York Times Case,” 114. 68 New York Times v. Sullivan, 606.

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Notes to pages 107–14

69 Kalven, The Negro and the First Amendment, 52–64. Kalven wrote: “we may come to see the Negro as winning back for us the freedoms the Communists seemed to have lost for us” (6). 70 Cohen v. California, 24 (Harlan). 71 Kymlicka, Multicultural Citizenship, 22. 72 Statements by Lévesque and Cairns. See Cairns, “The Other Crisis of Canadian Federalism,” 188. 73 Siegfried, The Race Question in Canada, 14, 85. 74 Taylor, Multiculturalism and “The Politics of Recognition,” 64. 75 Report of the Special Committee on Hate Propaganda in Canada, 33, 25. 76 Cairns, Citizens Plus, 122, 134–5, 178–83, 210–13; Lijphart, “Consociational Democracy,” 83; Lijphart, “Cultural Diversity and Theories of Political Integration,” 14; Confederation Debates, 511 (Dunkin). 77 See Raz, Ethics in the Public Domain, 163–76. 78 See Waldron, The Harm in Hate Speech, 65–104; LaSelva, “Toleration without Hate Speech,” 711–16. 79 Dicey, The Law of the Constitution, 137. 80 Hare, “Blasphemy and Incitement to Religious Hatred,” 310. 81 Whitehouse v. Gay News Ltd., 659. 82 Dworkin, A Bill of Rights for Britain, 10. 83 Moon, The Constitutional Protection of Freedom of Expression, 9–14; Sumner, The Hateful and the Obscene, 18–51, 202–3. 84 Mill, Utilitarianism, Liberty, Representative Government, 78–95. 85 Ibid., 359–64, 376. 86 Devlin, The Enforcement of Morals, 9, 11. 87 Hart, Law, Liberty, and Morality, 17–24. 88 Post, “Hate Speech,” 133, 130. 89 Dworkin, Taking Rights Seriously, 255. 90 Popper, The Open Society and its Enemies, 1: 265. 91 Jacobs and White, The European Convention on Human Rights, 427. 92 Schauer, “Free Speech and the Paradox of Tolerance,” 232, 235–6.

chapter six  1 Schlesinger, The Disuniting of America, 32.  2 Zangwill, The Melting-Pot, 37.  3 Crevecoeur, Letters from an American Farmer, 39–40. See also Kohn and Walden, Readings in American Nationalism, 87.   4 Porter’s view as reported in Burnet, “Multiculturalism in Canada,” 66.

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 5 Trudeau, Conversation with Canadians, 32–3.  6 Trudeau, Federalism and the French Canadians, 179.  7 Porter, The Vertical Mosaic, 60–103.  8 Bibby, Mosaic Madness, 1–3.  9 Bissoondath, Selling Illusions, 45–77. 10 Kallen, Culture and Democracy in the United States, 58–9. 11 See, for example, I. Young, Justice and the Politics of Difference, 96–121. 12 Fredrich, The Impact of American Constitutionalism Abroad, 60. 13 F. Turner, Frontier and Section, 152. 14 Lipset, The First New Nation, 2, 30, 67, 79, 98–9, 104–11. Lipset insists that America’s key values stem from its revolutionary origins (2) and describes Canada as the nation of the counterrevolution (98). 15 Confederation Debates, 514, 511. 16 Ibid., 490, 493, 501, 494, 505, 530. 17 Ibid., 526. For imperial federation, see C. Berger, The Sense of Power, 62–6, 134, 264–5. 18 Confederation Debates, 32–3. 19 Quoted in Rogers, “The Genesis of Provincial Rights,” 17. 20 Current, The Political Thought of Abraham Lincoln, 215, 297–8, 315, 176, 329. See also Donald, Lincoln Reconsidered, 33–6, 57–81. 21 Montesquieu, Selected Political Writings, 170–6. See also Diamond, “The Federalist’s View of Federalism,” 23–33. 22 Adair, Fame and the Founding Fathers, 132–50. 23 Wiecek, The Sources of Antislavery Constitutionalism in America, 63–83. 24 Morgan, American Slavery – American Freedom, 369–87. 25 Current, The Political Thought of Abraham Lincoln, 83, 284–5. 26 G. Smith, Canada and the Canadian Question, 204–11; Bourassa, “The French-Canadian in the British Empire,” 66–73. 27 Confederation Debates, 27. 28 Creighton, Towards the Discovery of Canada, 217–18. 29 Rogers, “The Genesis of Provincial Rights,” 18. 30 See, for example, M. Williams, “On the Use and Abuse of Recognition in Politics,” 3–9, 15–17. 31 Elshtain, Democracy on Trial, 75. 32 Bibby, Mosaic Madness, 3, 2, vii, vi. 33 Berlin, The Crooked Timber of Humanity, 11, 30, 12, 9–10. 34 Schlesinger, The Disuniting of America, 123. 35 Glazer, Ethnic Dilemmas, 268, 336. 36 Ibid., 336.

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Notes to pages 124–32

37 Kymlicka, Multicultural Citizenship, 181. See also I. Young, Justice and the Politics of Difference, 102–7. 38 Mill, Utilitarianism, Liberty, Representative Government, 73, 115, 117. 39 Kymlicka, Multicultural Citizenship, 76, 32. 40 Trudeau “Statement on Multiculturalism,” 349. 41 Trudeau, Conversation with Canadians, 33. 42 See, for example, Laforest, Trudeau and the End of a Canadian Dream, and Cardinal, The Unjust Society. 43 Government of Canada, Statement on Indian Policy, 5, 9. 44 Cardinal, The Unjust Society, 12. 45 Taylor, Multiculturalism and “The Politics of Recognition,” 64. 46 Ibid., 25. 47 Taylor, The Malaise of Modernity, 119. 48 Taylor, Reconciling the Solitudes, 181–4, 195–200. 49 Okin, Is Multiculturalism Bad for Women?, 13. 50 Ibid., 9, 11, 12. 51 Ibid., 22. 52 Kymlicka, “Liberal Complacencies,” 32, 34. 53 Okin, Is Multiculturalism Bad for Women?, 131. 54 Parekh, “A Varied Moral World,” 73–4. 55 See, generally, Foner, Free Soil, Free Labour, Free Men, 226–37. 56 Frankfurter’s views are discussed in Levinson, Constitutional Faith, 3, 101–2. 57 Bellah “Civil Religion in America,” 33, 36. See also Richard Hofstadter’s discussion of “the paranoid style in American politics” in D. Davis, The Fear of Conspiracy, 2–7. 58 Bellah, The Broken Covenant, 87–111. See also, D. Davis, Fear of Conspiracy, xvii–xxiv. 59 MacKinnon, Only Words, 71–110. 60 Horowitz, “Mosaics and Identity,” 360, 361, 363. 61 See Harney, “‘So Great a Heritage as Ours,’” 89–93; and Harles, “Multiculturalism, National Identity, and National Integration,” 219, 236–9. 62 Cairns, “Constitutional Reform,” 48. 63 Smith, “The Distinct Society Clause in the Meech Lake Accord,” 45–7, 53–4. 64 Cairns, “Looking into the Abyss,” 3–4, 14–15. 65 Scott, Essays on the Constitution, 174–89. W. Morton, “Confederation, 1870–1896,” 208–9. Creighton, The Road to Confederation, 145. 66 Reference re Secession of Quebec, 407, 413.

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67 Ibid., 407. 68 Smiley, “Reflections on Cultural Nationhood and Political Community in Canada,” 28, 38. See also Cooper, “The Political Ideas of George Etienne Cartier,” 290–4. 69 Frye, The Modern Century, 123. 70 Some of the differences between Canadian and American pluralism are highlighted in Horowitz, “Conservatism, Liberalism, and Socialism in Canada,” 144, 150, 154–6, 158–9, 161. See also Hartz, The Liberal Tradition in America, 9–13, 60–6, 140, 283, 305–9. 71 Lijphart, “Constitutional Design for Divided Societies,” 96–101. 72 See Lijphart, “Consociational Democracy,” 70–89; and Noel, “Consociational Democracy and Canadian Federalism,” 262–8. 73 McPherson, Is Blood Thicker Than Water?, 75. See also McPherson, Abraham Lincoln and the Second American Revolution. 74 Current, The Political Thought of Abraham Lincoln, 234. 75 Choudhry, Constitutional Design for Divided Societies, 16–20, 26–9, 32–40. 76 Lederman, Continuing Canadian Constitutional Dilemmas, 103. 77 Bissoondath, Selling Illusions, 71. 78 Tully, Strange Multiplicity, 28, 56–7; Turner, This is Not a Peace Pipe, 47–50; Eisenberg, Recognition versus Self-Determination, 294–300. 79 Cairns, Reconfigurations, 216–37; Laforest, “The Internal Exile of Quebecers in the Canada of the Charter,” 255–60. 80 See Lord Bryce’s introduction to Lincoln, Speeches and Letters, vii.

c h a p t e r s e ve n  1 Angle, Created Equal?, 2.   2 Bagehot, “The American Constitution at the Present Crisis,” 379, 380, 357, 380.  3 Trudeau, Federalism and the French Canadians, 31.   4 McRoberts, “Making Canada Bilingual,” 141; Montigny, “The Impact of the Canadian Charter on the Legislative Authority of Quebec,” 4–5, 10, 19–22.   5 R. Cook, Maple Leaf Forever, 100.  6 Laurin, Quebec’s Policy on the French Language, 2, 28.   7 Lévesque, “The National State of the French Canadians,” 134.  8 Lévesque, An Option for Quebec, 26, 27.   9 Mill, “The Contest in America,” 136, 141. 10 Hartz, The Liberal Tradition in America, 165.

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Notes to pages 138–48

11 McPherson, Is Blood Thicker Than Water?, 50. 12 Handler, Nationalism and the Politics of Culture in Quebec, 194. See also “the melancholy nationalists” in Maclure, Quebec Identity, 46–60. 13 Dion, Quebec: The Unfinished Revolution, 36, 43. 14 Current, John C. Calhoun, 110. 15 Lence, Union and Liberty, 93, 95, 212. 16 Ibid., 28, 275, 274, 277. 17 Hofstadter, The American Political Tradition, 87. 18 Calhoun, “Fort Hill Address, 147. 19 Lence, Union and Liberty, 470, 472. 20 Ibid., 473, 475. 21 Calhoun, “Speech on the Importance of Domestic Slavery,” 19. 22 McPherson, Is Blood Thicker Than Water?, 22. 23 Current, The Political Thought of Abraham Lincoln, 187. See also Lence, Union and Liberty, 44. 24 Knopff, “Language and Culture in the Canadian Debate,” 68, 71. 25 Dion, Quebec: The Unfinished Revolution, 201. 26 Chaput, Why I Am a Separatist, iv, 1, 2, 5, 83, 97. 27 Lévesque, An Option for Quebec, 15, 14, 92, 82, 26, 25, 17, 27. 28 Ibid., 94, 99. 29 Government of Quebec, Quebec-Canada: A New Deal, 58, 56, 107. 30 Garrison, Writings, 118, 140 119. 31 Léger, “Sovereignty, Condition of Salvation,” 111, 113, 114. 32 Texas v. White, 724. 33 Ibid., 737. 34 Ibid., 722. 35 Current, The Political Thought of Abraham Lincoln, 171, 185, 183, 166. 36 Ibid., 175–6, 175. 37 Reference re Secession of Quebec, 401. See also Choudhry and House, “Constitutional Theory and the Quebec Secession Reference,” 156–9, 163. 38 The Chrétien and Bouchard statements are reprinted in Schneiderman, The Quebec Decision, 92–100. 39 Schneiderman, The Quebec Decision, 92 (Chrétien). 40 Ibid., 95, 98, 99–100 (Bouchard). 41 Reference re Secession of Quebec, 423, 424, 426. 42 Ibid., 440–1, 427, 428. 43 Garrison, Writings, 35. 44 Current, The Political Thought of Abraham Lincoln, 215. 45 Trudeau, “Federalism, Nationalism, and Reason,” 189. 46 Cairns, “Looking into the Abyss,” 14–15. See also Schwartz, Last Best Hope, 71–9.

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47 D. Cameron, Nationalism, Self-Determination and the Quebec Question, 155. See also Wiecek, The Sources of Antislavery Constitutionalism in America, 247. 48 Johnson quoted in McPherson, Abraham Lincoln and the Second American Revolution, 133. 49 Morgan, American Slavery – American Freedom, 4, 374–87. 50 Dred Scott v. Sandford, 700, 701. 51 Morgan, American Slavery – American Freedom, 5. 52 Current, The Political Thought of Abraham Lincoln, 329, 297, 330. 53 Cover, “Nomos and Narrative,” 35. 54 McPherson, Abraham Lincoln and the Second American Revolution, 41, 62–4. 55 Willis, Lincoln at Gettysburg, 147. 56 Dworkin, “The Law of Slave-Catchers,” 1437. 57 Douglass, “The Dred Scott Decision,” 181, 180, 182. 58 Levinson, Constitutional Faith, 124, 139. 59 Trudeau, “Federalism, Nationalism, and Reason,” 192, 196, 197, 198. 60 Trudeau, “Patriation and the Supreme Court,” 248, 256, 249. See also Strayer, Canada’s Constitutional Revolution, 174–9. 61 Smiley, “A Dangerous Deed,” 78–80. LaForest, Trudeau and the End of a Canadian Dream, 5–9, 32–7, 185–94. 62 Reference re Supreme Court Act, 456. 63 Laponce , Languages and Their Territories, 41. 64 Scott, “Language Rights and Language Policy,” 380, 379, 383. 65 Ford v. Quebec, 629. 66 Wade, Constitutional Fundamentals, 1–2. 67 N. MacCormick, “The English Constitution, the British State, and the Scottish Anomaly,” 306. See also D. Young, “A Sketch History of Scottish Nationalism,” 9, 18–20. Soames, “The European Dimension,” 38, 42–3. 68 MacCormick v. Lord Advocate, 262. 69 Dicey and Rait, Thoughts on the Union between England and Scotland, 252–4. 70 Butterfield, The Whig Interpretation of History, v, 41–2. 71 Dicey and Rait, Thoughts on the Union between England and Scotland, 297–8, 274–5, 295. 72 Ibid., 362. 73 I. MacCormick, “The Case for Independence,” 89, 102. 74 The history of the Union is discussed in Trevor-Roper, “The AngloScottish Union,” 287–88, 295–302. 75 T. Smith, “The Union of 1707 as Fundamental Law,” 114.

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Notes to pages 158–64

  76 N. MacCormick, “The English Constitution, the British State, and the Scottish Anomaly,” 303, 304, 305.  77 Hailsham, The Dilemma of Democracy, 11–13, 212.   78 Hailsham, “The Nation and the Constitution,” 76–7.  79 Hailsham, Hamlyn Revisited, 84; Hailsham, “The Nation and the Constitution,” 80.   80 Irvine, “Keynote Address,” 1.   81 Bogdanor, “Devolution: The Constitutional Aspects,” 12, 13.   82 Bradley, “Constitutional Reform, the Sovereignty of Parliament, and Devolution,” 34, 36, 39.   83 Bogdanor, “Devolution: The Constitutional Aspects,” 13.  84 Bogdanor, The New British Constitution, 114, 285.   85 Some Scottish nationalists argue that a federal Britain is not a viable option. See N. MacCormick, Questioning Sovereignty, 193–204.  86 Current, The Political Thought of Abraham Lincoln, xxii.  87 Foner, Free Soil, Free Labour, Free Men, 309.   88 Madison quoted in Koch, Power, Morals, and the Founding Fathers, 105.   89 Gladstone quoted in Kammen, A Machine That Would Go of Itself, 162.   90 W. Morton, The Canadian Identity, 85.  91 Trudeau, Conversation with Canadians, 33.   92 Government of Canada, A National Understanding: The Official Languages of Canada, 12 (preface by Trudeau).  93 Trudeau, Conversation with Canadians, 195.   94 See also Preliminary Report on the Royal Commission on Bilingualism and Biculturalism, 144.   95 Laforest, “The Internal Exile of Quebecers in the Canada of the Charter,” 252–5; and “the federalism of empowerment” in Gagnon and Schwartz, “Canadian Federalism since Patriation,” 261–3.   96 Lévesque quoted in R. Cook, “I never thought I could be as proud,” 346.   97 Dion, “The Mystery of Quebec,” 288.   98 W. Morton, The Canadian Identity, 86.  99 Current, The Political Thought of Abraham Lincoln, 234. 100 Hailsham, Hamlyn Revisited, 84; Hailsham, “The Nation and the Constitution,” 80.

chapter eight    1 Trudeau, “Remarks on Aboriginal and Treaty Rights,” 331–2.    2 Nixon, “Message to Congress on Indian Affairs,” 213. See also Edmunds, “National Expansion from the Indian Perspective,” 159–65. W. Williams, “American Imperialism and the Indians,” 232, 240.

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  3 Nixon, “Message to Congress on Indian Affairs,” 211, 215, 230.  4 Josephy, Red Power, 212.  5 Weaver, Making Canadian Indian Policy, 171.  6 Trudeau, Conversation with Canadians, 21.  7 Calder v. Attorney-General of British Columbia, 169–223.   8 See the comparative analysis of “legislation and Indigenous self-­ determination in Canada and the United States” in Borrows, Freedom and Indigenous Constitutionalism, 161–6.  9 Myrdal, An American Dilemma, 1: lxx, 13. 10 Hamilton, The Federalist, 345. 11 Currrent, The Political Thought of Abraham Lincoln, 285. 12 Van Dyke, “Collective Entities and Moral Rights,” 21; and Svensson, “Liberal Democracy and Group Rights,” 421. 13 Jefferson, Political Writings, 61. 14 Wallace, Jefferson and the Indians, 11. 15 Nichols, Lincoln and the Indians, 211, 187. 16 Josephy, “Modern America and the Indian,” 260–4. 17 Grant, Lament for a Nation, 47. 18 For an Indigenous assessment of the liberal ethos that overlaps with Grant’s critique of capitalist modernity, see Coulthard, “Place against Empire,” 154–67. 19 W. Williams, “American Imperialism and the Indians,” 232, 240. See also Hoxie, “The Curious Story of Reformers and the American Indians,” 210–13, 219–21. 20 Wallace, Jefferson and the Indians, ix, 335–8. 21 Wilkinson, American Indians, Time, and the Law, 8, 24. 22 United States v. Kagama, 384, 385. 23 Worcester v. Georgia, 375. 24 Quoted in Bobbitt, Constitutional Fate, 113. 25 Johnson and Graham’s Lessee v. M’Intosh, 4, 34. 26 Cherokee Nation v. Georgia, 314–16. 27 Worcester v. Georgia, 347–8, 362. 28 Prucha, Americanizing the American Indian, 10. 29 Williams v. Lee, 219. 30 Wilkinson, American Indians, Time, and the Law, 121, 122. 31 Grant, Lament for a Nation, x–xii. 32 Wilkinson, American Indians, Time, and the Law, 121. 33 Currrent, The Political Thought of Abraham Lincoln, 16. 34 Kammen People of Paradox, 294, 60, 85. 35 U.S. v. Carolene Products Co., 152–3. See also Ely, Democracy and Distrust, 73–104.

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Notes to pages 171–6

36 Kymlicka, “Liberalism, Individualism, and Minority Rights,” 181; and Danley, “Liberalism, Aboriginal Rights, and Cultural Minorities,” 168. 37 Current, The Political Thought of Abraham Lincoln, 174. 38 Trudeau as quoted in Cairns, “The Other Crisis of Canadian Federalism,” 183. 39 Compare Fanon, Black Skin, White Masks, 210–32. Fanon, The Wretched of the Earth, 41–3, 94, 198, 209–11. 40 Taylor, Multiculturalism and “The Politics of Recognition,” 61–73; Tully, Strange Multiplicity, 7–29; Eisenberg, Recognition versus SelfDetermination, 294–305; Coulthard, Red Skin, White Masks, 151–79. 41 Cairns, Charter versus Federalism, 123–6; Russell, Canada’s Odyssey, 6–19. 42 Quoted in Tennant, Aboriginal Peoples and Politics, 92. 43 Government of Canada, Statement on Indian Policy, 3, 6, 8–9. 44 Mercredi and Turpel, In the Rapids, 217. 45 Erasmus, “Native Rights,” 179–80. 46 Trudeau, Federalism and the French Canadians, 179; Johnston, Pierre Trudeau Speaks Out on Meech Lake, 32. 47 Stanley, “Act or Pact?,” 109. 48 Black, Divided Loyalties, 151–4. See also Cook, Provincial Autonomy, Minority Rights and the Compact Theory, 51–63. 49 Stanley, “Act or Pact?,” 95. 50 Lévesque, An Option for Quebec, 24, 27. 51 Trudeau, “The Values of a Just Society,” 363. 52 Trudeau, Memoirs, 365. 53 Boldt and Long, “Tribal Traditions and European-Western Political Ideologies,” 335. 54 Royal Commission on Aboriginal Peoples, Aboriginal Self-Government: Restructuring the Relationship, 2: 47. 55 Turner, This Is Not a Peace Pipe, 59. 56 Hobbes, Leviathan, 127. 57 Quoted in Wood, The Creation of the American Republic, 528. 58 Morgan, Inventing the People, 281. 59 Freeman, History of Federal Government, 70. 60 Wood, The Creation of the American Republic, 524–32; Corwin, “We, the People,” 81–2; McPherson, Is Blood Thicker Than Water?, 39–51, 73–6. 61 “An Act Respecting the Future of Quebec (Bill 1),” 480. 62 Sheppard, “The Cree Intervention in the Canadian Supreme Court Reference on Quebec Secession,” 850–4. 63 Grand Council of the Crees, “Sovereign Injustice,” 485, 489–90. 64 Charlottetown Accord as reprinted in C. Cook, Constitutional Predicament, 242.

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Notes to pages 177–88

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65 Royal Commission on Aboriginal Peoples, Partners in Confederation, 2–3, 21, 29, 31. 66 Ibid., 36, 41, 49. 67 Truth and Reconciliation Commission of Canada, Calls to Action, 4–5. 68 Turpel, “Aboriginal Peoples and the Canadian Charter,” 13, 20, 37, 45. 69 Kennedy, A Nation of Immigrants, 6, 67, 75, x. 70 Bickel, The Morality of Consent, 53–4. 71 Plessy v. Ferguson, 219–20. 72 Silver, The French-Canadian Idea of Confederation, 32. 73 Trudeau, “A Mess That Deserves a Big no ,” 12, 69–71, 57. 74 Assembly of First Nations, To the Source, 10, 2, 27, 76. 75 Ibid., 70. 76 Cardinal, The Unjust Society, 36, 26. 77 Hawthorn, A Survey of the Contemporary Indians of Canada, 1: 397, 303, 401. 78 Cairns, Citizens Plus, 7. 79 Wa and Uukw, The Spirit in the Land, 7. 80 Borrows, “‘Landed’ Citizenship,” 140, 146. 81 McPherson, Is Blood Thicker Than Water?, 73. 82 Borrows, “‘Landed’ Citizenship,” 154, 156. 83 Kymlicka and Norman, Citizenship in Diverse Societies, 39. See also Borrows, “‘Landed’ Citizenship,” 157. 84 Borrows, “‘Landed’ Citizenship,” 157. 85 Carty and Ward, “The Making of a Canadian Political Citizenship,” 65, 77, 78. See the discussion of Cartier in Borrows, Canada’s Indigenous Constitution, 126. 86 Slattery, “First Nations and the Constitution,” 262, 265, 268, 293. See also Slattery, “Making Sense of Aboriginal and Treaty Right,” 198, 214–15. 87 Papillon, “Adapting Federalism,” 307, 301, 304. See also Borrows, Freedom and Indigenous Constitutionalism, 161–80. 88 Josephy, Red Power, 17. 89 Cohen, “Indian Self-Government,” 19, 22, 25, 27, 28. 90 Tsilhqot’in Nation v. British Columbia, 296. 91 Riker, Federalism, 140.

chapter nine  1 Grant, Lament for a Nation, 6. See also A. Davis, George Grant and the Subversion of Modernity and Umar, George Grant and the Future of Canada.

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Notes to pages 188–96

 2 Christian, The George Grant Reader, 125.  3 Ibid.   4 Cairns, “The Other Crisis of Canadian Federalism,” 171, 184, 190. See also the essays on Cairns in Kernerman and Resnick, Insiders and Outsiders.  5 Tuveson, Redeemer Nation, 214.  6 O’Brien, God Land, 27–42, 57–63, 81. See also Bultmann, History and Eschatology, 56–73, for a discussion of religious and secular versions of eschatology or the doctrine of “last things.”  7 Current, The Political Thought of Abraham Lincoln, 315–16.   8 For the background to these ideas, see Tuveson, Millennium and Utopia, vii–xii, 183–203.  9 Peek, The Political Writings of John Adams, 8; Cronon, The Political Thought of Woodrow Wilson, 528–31. 10 Confederation Debates, 58, 59. 11 Ibid., 44. 12 Grant, Lament for a Nation, 63. 13 Christian, The George Grant Reader, 171. 14 Grant, Lament for a Nation, 3–4, 33, 69. See also Preece, “The Political Wisdom of Sir John A. Macdonald,” 463–70, 478–82, 486. 15 Christian, The George Grant Reader, 136, 135, 134. 16 Christian, George Grant: Selected Letters, 234–7. See also Berger, “True North Strong and Free,” 4–20. 17 Grant, Lament for a Nation, 1. 18 Christian, George Grant: Selected Letters, 222, 221. 19 Grant, Lament for a Nation, 54, 96. 20 Ibid., x, 93–7; Grant, Technology and Empire, 81–2, 92–6. 21 Ibid., xi, xii. 22 Ellmann, Yeats, 236. 23 Cairns, “Looking into the Abyss,” 14–15. 24 Grant, Lament for a Nation, vii. 25 Cairns, “Political Science in Canada and the Americanization Issue,” 229–30. 26 Cairns, “Alternative Styles in the Study of Canadian Politics,” 115–16. 27 Cairns, “The Living Canadian Constitution,” 30, 31, 41. 28 E. Black and Cairns, “A Different Perspective on Canadian Federalism,” 95, 99. 29 Cairns, “The Governments and Societies of Canadian Federalism,” 169. 30 Cairns, “The Other Crisis of Canadian Federalism,” 171, 183, 190. 31 Cairns, “The Canadian Constitutional Experiment,” 229.

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Notes to pages 197–205

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32 Cairns, “The Politics of Constitutional Conservatism,” 195. 33 Cairns, “The Canadian Constitutional Experiment,” 241, 240, 244, 255. 34 Cairns, “The Politics of Constitutional Conservativism,” 228. 35 Hovius and Martin, “The Canadian Charter of Rights and Freedoms in the Supreme Court of Canada,” 354–5. 36 Russell, “The Political Purposes of the Canadian Charter of Rights and Freedoms,” 51–2. See also Smiley, “The Case against the Canadian Charter of Human Rights,” 282–6. 37 Taylor, Reconciling the Solitudes, 109–12. See also Sandel, “The Procedural Republic and the Unencumbered Self,” 81. 38 R. Cook, The Teeth of Time, 153–62. 39 Cairns, “Citizens (Outsiders) and Governments (Insiders) in ConstitutionMaking,” 109, 137–8. 40 Taylor, Reconciling the Solitudes, 145. 41 Cairns, Charter versus Federalism, 9, 101, 126. 42 Cairns, “Constitutional Reform,” 48, 62, 59. 43 Cairns, “Looking into the Abyss,” 3, 11, 12, 20, 27, 26. 44 Tuveson, Redeemer Nation, 197–8. 45 G. Smith as quoted in Underhill, In Search of Canadian Liberalism, 89. 46 Underhill, The Image of Confederation, 27. 47 G. Smith as quoted in Berger, Imperialism and Nationalism, 25. 48 G. Smith, Canada and the Canadian Question, 221. 49 Grant, Technology and Empire, 63. 50 Berger’s introduction to G. Smith, Canada and the Canadian Question, xii. 51 G. Smith, Canada and the Canadian Question, 4. 52 Confederation Debates, 126, 145. 53 G. Smith, Canada and the Canadian Question, 161, 41, 28, 29, 217, 220. 54 Ibid., 168, 167, 50, 168, 169, 78, 10, 35, 169. 55 Ibid., 191, 80, 71, 114, 5. 56 LaSelva, “To Begin the World Anew,” 23–30. 57 Grant, Lament for a Nation, 45; E. Black and Cairns, “A Different Perspective on Canadian Federalism,” 95. 58 Christian, George Grant: Selected Letters, 234. 59 Grant, Lament for a Nation, 68, 70. 60 Cairns, Charter versus Federalism, 112; and Cairns, “The Constitutional World We Have Lost,” 99, 114. See also Cairns, Citizenship, Diversity and Pluralism, 12. 61 Waite, Canada 1874–1896, 2. 62 Frye’s conclusion is reprinted in Frye, The Bush Garden, 241, 251. 63 Marx, The Machine in the Garden, 117–44.

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Notes to pages 205–12

64 G. Smith, Canada and the Canadian Question, 212, 9, 217. 65 Kilbourn, Canada: A Guide to the Peaceable Kingdom, xvii–xviii. 66 Laurier as quoted in Underhill, The Image of Confederation, 27. 67 Underhill, The Image of Confederation, 47, 69. 68 G. Smith, Canada and the Canadian Question, 113–14. 69 Confederation Debates, 126, 134. 70 LaSelva, The Moral Foundations of Canadian Federalism, 31–48.

c ha p t e r te n  1 Trudeau, Federalism and the French Canadians, 177; Johnston, Pierre Trudeau Speaks Out on Meech Lake, 105; Trudeau, Memoirs, 361.  2 Butterfield, The Whig Interpretation of History, 3–4, 41–6, 109–13; Butterfield, The Englishman and His History, 69–82. Pocock, The Ancient Constitution and the Feudal Law, 229–51. See also Hill, Some Intellectual Consequences of the English Revolution, 3–4, 84–6, 90.  3 Gunther, John Marshall’s Defence of McCulloch v. Maryland, 28, 34.  4 Wheare, Modern Constitutions, 66–120.  5 Levinson, Constitutional Faith, 9–53.   6 C. Hughes, The Supreme Court of the United States, 50.  7 Jefferson, Political Writings, 123.  8 Marshall, Constitutional Theory, 1–2. Jennings, The Approach to SelfGovernment, 1–2, 12–24.  9 King, Does the United Kingdom Still Have a Constitution?, 101. Wade, Constitutional Fundamentals, 2. 10 Bogdanor, The New British Constitution, 310. 11 Hearn quoted with approval in Amery, Thoughts on the Constitution, 2. Pocock, The Ancient Constitution and the Feudal Law, 30–69. 12 Blackstone, The Sovereignty of Law, 237. 13 Jennings, The Law and the Constitution, 8–9. 14 Paine, The Rights of Man, 93–4, 168. See also Philip, Paine, 54–68. 15 Wormuth, The Origins of Modern Constitutionalism, 174–83. Vile, Constitutionalism and the Separation of Powers, especially the chapter on “The Matchless Constitution and Its Enemies.” 16 Schwoerer, The Declaration of Rights, 281–91. 17 Trevelyan, The English Revolution, 5. 18 Burke, Reflections on the Revolution in France, 117–18. See also Butterfield, The Englishman and His History, 4–11, 47–62, 103–9. 19 Macaulay, The History of England, 51. 20 Kenyon, Revolution Principles, 203, 205, 206. 21 Burke, Reflections on the Revolution in France, 106.

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22 Dicey, Law and Public Opinion, 69. 23 Ibid., 69, lxxxvii. 24 Burke, “An Appeal From the New to the Old Whigs,” 654–5. 25 Dicey, Law of the Constitution, 183–4, 430–1. 26 See, for example, Goldsworthy, The Sovereignty of Parliament, 9–21; and Allan, Law, Liberty, and Justice, 1–19. 27 Dicey, Law of the Constitution, 3, v, 205. 28 Ibid., 39, 70, 188, 380, 472. 29 Dicey, Law and Public Opinion, 257–8. Dicey, England’s Case against Home Rule, 278–90. See also Cosgrove, The Rule of Law, 115, 295. 30 See Bogdanor, The New British Constitution, for a detailed analysis of the changes since 1997. 31 King, Does the United Kingdom Still Have a Constitution?, 100–1. 32 Bogdanor, The New British Constitution, 310. 33 N. MacCormick, Questioning Sovereignty, 53–6, 193–204. 34 Foot and Kramnick, The Thomas Paine Reader, 65, 81, 93. 35 Koch, Power, Morals, and the Founding Fathers, 122–37. 36 Becker, The Declaration of Independence, 5–23. 37 Burke, “An Appeal From the New to the Old Whigs,” 635. 38 Burke, “Speech on Conciliation,” 196, 189. 39 Bailyn, The Ideological Origins of the American Revolution, 34–5, 46–7. 40 Adams, “Novanglus,” 304, 327, 338. 41 Jefferson, “A Summary View of the Rights of British America,” 258, 270, 276. 42 Becker, The Declaration of Independence, 24–7. 43 Allen, George Washington, 240. 44 Ibid., 462. 45 Madison, “Vices of the Political System of the United States,” 91. 46 Hamilton, The Federalist, 136. 47 Farrand, Records of the Federal Convention of 1787, 3: 291. 48 Jefferson, Writings, 916. 49 Meyers, The Mind of the Founder, 206, 209; Hamilton, The Federalist, 358. 50 Meyers, The Mind of the Founder, 207. 51 Hamilton, The Federalist, 349; Meyers, The Mind of the Founder, 231. 52 Lerner, “Constitution and Court as Symbols,” 1294. 53 Anderson, The Literary Works of Abraham Lincoln, 208. 54 Wiecek, The Sources of Antislavery Constitutionalism in America, 62–83. 55 Current, The Political Thought of Abraham Lincoln, 326, 297, 215. 56 Ibid., 88–9, 328, 187–8. See also Foner, Free Soil, Free Labour, Free Men, 66–72.

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Notes to pages 220–8

57 Croly, The Promise of American Life, 1, 94, 89. 58 Carson, The Autobiography of Martin Luther King, Jr, 223–7. 59 Ely, On Constitutional Ground, 4. 60 Compare Hayek, The Constitution of Liberty, 176–92; Rawls, A Theory of Justice, 201–5, 274–84, 302–15; Sandel, Democracy’s Discontent, 3–24, 317–51. 61 Edwards v. Attorney General of Canada, 136. 62 Gunther, John Marshall’s Defence of McCulloch v. Maryland, 26, 28–9. 63 Edwards v. Attorney General of Canada, 135–6. 64 Gunther, John Marshall’s Defence of McCulloch v. Maryland, 25. 65 Allen, George Washington, 462. 66 Edwards v. Attorney General of Canada, 135–6. 67 Hamilton, The Federalist, 94. 68 Edwards v. Attorney General of Canada, 135–6. 69 Grant, Lament for a Nation, 3–4, 84, 86. 70 Ibid., x. 71 Farthing, Freedom Wears a Crown, 21, 37, 3–4, 128. Vaughan, The Canadian Federalist Experiment, 3–6, 91–114. For a discussion of Canada’s founding that emphasizes the importance of Locke, see Ajzenstat, The Canadian Founding, xii–xiv, 6–8, 40–5, 50–55, 62, 85–8. 72 Farthing, Freedom Wears a Crown, 67. 73 Grant, Lament for a Nation, 84, 96. 74 Cairns, “The Living Canadian Constitution,” 28, 42. 75 Wise, Canada Views the United States, 96. 76 Macdonald as quoted in Berger, The Writing of Canadian History, 232–3. 77 Creighton, The Road to Confederation, 145. 78 Confederation Debates, 29. 79 Rogers, “The Genesis of Provincial Rights,” 17. 80 Trudeau, Against the Current, 216. 81 Trudeau, Memoirs, 365. 82 Morris, Alexander Hamilton and the Founding of the Nation, 143–4. 83 Neatby, The Quebec Act, 1. 84 Frye, Divisions on a Ground, 81. See also Wheare, “Federalism and the Making of Nations,” 35–6. 85 Friedrich, The Impact of American Constitutionalism Abroad, 12. 86 Marshall, Constitutional Theory, 1–2. 87 Bagehot, The English Constitution, 202, 196, 199–200, 203. 88 Brady, “Canada and the Model of Westminster,” 60–4, 67–8. 89 Craig, Lord Durham’s Report, 22–3, 150. See also Ajzenstat, The Political Thought of Lord Durham, 73–100.

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 90 Ormsby, The Emergence of the Federal Concept in Canada, 125.  91 Confederation Debates, 589, 596–7.   92 Ibid., 347–9.   93 Ibid., 514, 511.   94 Ibid., 33. See also W. Morton, “Confederation,” 208–11, 224–7; Vipond, Liberty and Community, 1–13.  95 Smiley, The Canadian Political Nationality, 9, 128–35.  96 Confederation Debates, 60–1.  97 McIlwain, Constitutionalism, 21–2.  98 Marshall, Constitutional Conventions, 201.   99 Freeman as quoted in Dicey, The Law of the Constitution, 418–19. See also Phillips, “Constitutional Conventions: Dicey’s Predecessors,” 144–8. 100 Turner, Frontier and Section, 88. 101 Levinson, Constitutional Faith, 5, 89, 191–4. 102 Turner, Frontier and Section, 126, 132, 137–8, 152. 103 Tocqueville, Democracy in America, 1: 176, 45, 301. 104 Churchill, “The Tragedy of Europe,” 8–11. Churchill did not suggest that Britain would join “the United States of Europe.” It would remain at the head of the British Commonwealth. 105 Schuman, “Declaration of 9 May 1950,” 203. 106 Mitrany A Working Peace System, 170. See also Pinder, European Community, 1–18, 203–18. 107 Habermas, “Why Europe Needs a Constitution,” 5. 108 Siedentop, Democracy in Europe, xi, 101, 130–1, 195, 30. 109 J. Weiler, The Constitution of Europe, 238–9, 262. 110 Bogdanor, The New British Constitution, 285. 111 Gladstone quoted in Kammen, A Machine That Would Go of Itself, 162. 112 Friedrich, The Impact of American Constitutionalism Abroad, 60–1. Siedentop, Democracy in Europe, 231. 113 Fortescue, On the Laws and Governance of England, 17. 114 Montesquieu, Selected Political Writings, 151. 115 Dworkin, Freedom’s Law, 1–38. See also Dworkin, Taking Rights Seriously, 149. 116 Edwards v. Attorney General of Canada, 135–6. See also Holmes, Life with Uncle, 105–26. 117 Jennings, The Approach to Self-Government, 1–2. 118 Scarman, English Law – The New Dimension, 17, 63, 77, 85. 119 King, Does the United Kingdom Still Have a Constitution?, 100–1. 120 Bingham, The Rule of Law, 160–70; Laws, The Common Law Constitution, 4–30.

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Index

Note: “the Charter” refers to the Charter of Rights and Freedoms abolitionism, 140, 143, 147–8 Aboriginal peoples (Canada): communalism, 180–1; contemporary constitutionalism and, 14, 16–19; culture, 167, 171, 177–8; identity and destiny, 13, 14, 44, 169, 179; multiculturalism and, 125–6, 173; participation in referendums, 18–19; reconciliation, xii, 187; spirit of the land and, 182–3; two-row wampum, xv, 4, 17, 20, 21; vision of Canada, 39, 126 Aboriginal rights (Canada): citizenship, 181–3; constitutionalism and, xi, 14, 173, 177, 234; Crown sovereignty and, 184; partnership in Confederation, 4, 172, 177, 179; policy changes, 185; protection of, 227; recognition of, 39, 41, 74, 126, 172–3; self-government, xv, 15–16, 22, 108, 134, 176, 180–1, 186; Trudeau’s speech on, 163–5, 225 Abrams v. United States, 91, 95, 100, 105–6

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Ackerman, Bruce, 71–2, 86 Act of Union (uk , 1707), xv, 155–6 Acton, Lord, 151 Adams, John, 190, 216 Adams, Samuel, 175 Agresto, John, 52 Allan, T.R.S., 81–2 American Booksellers v. Hudnut, 40, 93, 95, 99, 108 American Civil War, 37–8, 137, 200; Canadian views of, 30, 49–50, 117–18, 120; freedom and, 133–4; Lincoln’s insights, x, xv, 69, 118–19, 189, 220; segregation of races and, 19, 179 American constitutionalism: the Charter’s notwithstanding clause and, 46, 53; compared to Canadian constitutionalism, 21–2, 32–5, 44, 60, 99–100, 104–5, 185–6, 234; democracy and, 62, 68, 70, 86; divisions of, 137; ethical argument, 86; federalism and, 60; freedom and, 53, 187; judicial review and, 67;

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judiciary supremacy, 23, 25; Madison’s account, 27, 41, 65; optimism of, 195; tribal self-­ government and, 171, 185. See also constitutional faith (American); US Constitution (1787) American dream, 8, 191, 220–1. See also ideal, American American empire, 11, 188–9; impact on Canadian identity, 4, 9–10, 194–5, 223 American framers, 35, 42, 136, 175, 226; compared to Confederation framers, 117; as lawgivers, 25; slavery and, 118, 119, 151, 219–20; understanding of judicial review, 63–4. See also individual name American Indians: belonging, 182; compared to Canadian Aboriginals, 172; constitutional standing, 185; Jefferson and Lincoln’s views, 166–7; land holdings, 168; liberalism and, 170–1; Nixon’s message to, 164– 5; self-government, xv, 168–70, 186 Americanization thesis: Canadian identity and, 23–4; Confederation and the Charter and, 30, 36, 40, 42, 197; judges and, 41; rejection, 30 American Revolution, 23, 26, 67, 139, 216, 244n61 American Union: compared to Canadian Confederation, 34, 174; Declaration of Independence and, 150; design of the, 27, 28, 136; failure, 217; faith in

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liberty and, 231; Federalists/ Anti-Federalists and, 29; as indestructible, 144, 182; unilateral secession, 143–5, 147 amity or fraternity, xii, 134–5 Anglo-Scottish relations, 156–8, 215 Anti-Federalists, 27, 29–30, 50, 65, 175, 218 Articles of Confederation (US, 1781), 119, 144, 208, 217–18 Asbestos Strike (Quebec), 6–7 Assembly of First Nations, 173; To the Source report, 180–1 assimilation: of Aboriginal peoples, 165, 168–70, 172–3; American “ideal” of, 123–5; of French Canadians, 228–9; liberalism and, 170; oppression and, 128; rejection of, 14, 16, 132, 227 Austin, John, 80–1, 155–6 autonomy: of American Indians, 168; free expression and, 103, 107; individual, 116, 124–5, 165; liberal concepts of, 128, 134, 171; Quebec’s demand for, 196, 203. See also sovereignty Bacon, Francis, 49 Bagehot, Walter, 23, 30, 136, 159; The English Constitution, x, 213, 228, 230, 233, 243n35 “Battle Hymn of the Republic” (1862), 200 Beard, Charles, 64–5 Beauharnais v. Illinois, 97 Bellah, Robert, 130 belonging, 142, 178, 179; Aboriginal, 18, 181, 182 Bentham, Jeremy, 78, 234

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Berlin, Isaiah, xiii, 24, 122–3 Bibby, Reginald, 122–3 Bickel, Alexander: counter-­ majoritarian difficulty theory, 61, 63, 64, 68, 75, 78; criticism of, 86–7; judicial prudence theory, 68–9, 71, 85–6; triune function of judicial review, 85–6 bilingualism, 137, 142, 153 Bill of Rights (Canada, 1960): absence in constitution, 31, 34; enactment, 197. See also Charter of Rights and Freedoms (Canada, 1982) Bill of Rights (US, 1791): AntiFederalists and, 29–30, 50; ­compared to the Charter, 77; Fourteenth Amendment, 35–8, 40, 50–1, 53, 58; free speech and, 101; ideals of governance, 35; liberal-egalitarian concept, 36, 37; Madison’s comments, 27, 218– 19; neutrality, 111; Trudeau’s admiration for, 226. See also First Amendment (Bill of Rights) Bissoondath, Neil, 134 Black, Charles, 63–4 Black people, 119–20, 141, 149, 178–9 Blackstone, Sir William, 154, 155, 210 blasphemy, 96, 109 Bobbitt, Philip, 86 Bogdanor, Vernon, 84, 215, 238n29 Bolingbroke, Lord, 215 Bork, Robert, 59–60 Borrows, John, 21, 182–3 Boucher v. the King, 31–2 Brandeis, Justice Louis, 68–9, 85, 91–2

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Brandenberg v. Ohio, 94 Brassard v. Langevin, 31 Brennan, Justice, 93, 107 Britain-Canada connection: American republicanism and, 26, 224, 226; Canadian identity and, 223, 225; the Charter and, 24–6; Confederation and, 20, 23–4, 30–2; Macdonald’s desire to retain, ix, 12, 32, 35, 190–1, 229 British constitution: Bagehot’s discussion, x, 30, 228, 233; checks and balances, 35; common law, 80–2; criticism and praise, 210– 11, 235; Dicey’s principles, 84, 213–14, 233; dissatisfaction with, 154–5, 209, 235; freedoms of, 33; judicial review and, 83–4; legislative power and, 31, 230; Liberal-Whiggism of, 211–12, 214–15, 226, 230; liberty and, 109; Montesquieu’s account, 24–5, 29; reforms, 158–60, 162, 212, 215; rule of law, 32, 82; sovereign authority principle, x, 30, 228, 230, 234. See also British Parliamentary sovereignty; constitutional faith (British) British North America Act (b na ), 24, 73, 221, 223, 224; division of powers, 32–3 British Parliamentary sovereignty, xvii, 23, 59, 85, 88; AngloScottish relations, 156–8; Canadian federalism and, 32–3; common law and, 81–2; constitutional trust and, 184; human rights and, 79–80; responsible government and, 228;

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308 Index

revolutionary change and, 159– 60; rule of law and, 32, 41, 79, 83–4, 213–14, 230 Brown v. Board of Education, 37–8, 51, 53, 69, 71 Burger, Chief Justice, 93 Burke, Edmund, 158, 216, 217; mixed constitution concept, 213, 215; praise for the British constitution, 210–12 Bushnell, Allison, 58, 59, 62, 74–6 Butler case. See Regina v. Butler Cairns, Alan, xv; “A Different Perspective on Canadian Federalism,” 196; Charter versus Federalism, 25–6, 199; “citizen plus” approach, 181–3; “Citizens (Outsiders) and Governments (Insiders) in ConstitutionMaking,” 198; “Constitutional Reform,” 131, 199; “Governments and Societies of Canadian Federalism,” 196; “Looking into the Abyss,” 189, 194, 199–200; “Political Science in Canada and the Americanization Issue,” 195; “The Living Canadian Constitution,” 195–6, 224; “The Other Crisis of Canadian Federalism,” 189, 195, 196, 204; “The Politics of Constitutional Conservatism” and “The Canadian Constitutional Experiment,” 196–7 Calhoun, John C., 143, 145, 148; minority rights defence, 139–40; secession theory, 139, 144, 174; view of slavery, 140–1, 149

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Canadian constitutionalism: Aboriginal rights, 14, 173, 177, 234; Charter dialogue theory, 75–8; compared to US constitutionalism, 21–2, 32–5, 44, 58, 99–100, 104–5, 185–6; distinctiveness, xii, 25, 44, 73; ethics of, 95, 154, 205, 229, 234; federalism and, 44, 54, 56, 77, 186; identity and, xi, 24, 165, 222–3, 225, 227; middle ground, 184–5; multiculturalism and, 96, 104, 125; Quebec and, 55, 146–7, 152. See also Charter of Rights and Freedoms (Canada, 1982); Constitution Act (Canada, 1982); constitutional faith (Canadian) Canadian identity: allegiance to the Crown, 161; the Charter and, xvi, 12, 23–5, 26, 39, 197; common, 48, 58; competing conceptions, ix; constitutional faith and, xii, 4, 43, 190, 227; in Grant’s Lament for a Nation, 188, 192, 194, 222–5; hate speech and, 90, 107; local, 229; Mackenzie King and, 204; as non-existent, 13; as the “peaceable kingdom,” 205, 207; as pluralistic, x, xi, 90; US and, 200–1, 206, 223–4. See also identity (general) Canadianness, 47, 184 Canadian Parliament, 98–9 capitalism, 10, 167, 201, 205 Cardinal, Harold, 14, 126, 181–2 Carnarvon, Lord, 174 Carolene Products Co. case. See United States v. Carolene Products Co.

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Index 309

Cartier, George, xii, 49, 190; on political nationality, 21–2, 121, 132, 183–5, 229 censorship, xiv, 90, 99, 102 central government: Britain, 32, 213; Canada, 66–7, 117, 118; US, 29, 30, 49–50, 222 Chafee, Zechariah, 91 Chancellor, Lord, 158–9 Chaplinski v. New Hampshire, 92–5 Chaput, Marcel, 141–2 Charlottetown Accord: Aboriginal self-government and, 176; failure, 4, 8, 55, 73, 199; Trudeau’s criticism, 56, 179–80 Charter of Rights and Freedoms (Canada, 1982): Aboriginal rights, 39, 74; adoption, 24, 41–2, 56–7, 131; Americanization thesis and, 26–7, 36; British connection, 24–6; dialogue theory, 42, 58, 59, 62, 74–8; group rights, 38, 39, 41, 60; human rights, 23–4; Meech Lake Accord and, 198–9; reasonable limits clause, 48, 57, 74, 75, 78, 96–8, 104; sexual equality, 98–9; skeptics, 197–8; Tory account of, 12–13; Trudeau’s support, 5, 8, 23–5, 38–40, 73–4, 226–7. See also notwithstanding clause (the Charter) Chase, Chief Justice, 144–5 checks and balances: of British constitution, 24, 29, 35; Madisonian, 29–30, 41, 70, 124, 218, 230; Montesquieu’s theory, 30; US constitution, 49, 64, 136 Cherokee Nation, 168

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Cherokee Nation v. Georgia, 169 Churchill, Winston, 231–2, 269n104 citizenship: Aboriginal, 181–3; American, 19, 178–9; British, 109; Canadian, 25, 108–9, 179– 81, 184; common, 232; democratic, 43; differentiated theory of, 21; everyday notion of, 16; integrative, 124; multicultural, 16, 128, 134 civil religion, American, 89, 102, 130, 133, 230 Cohen, Felix, 185–6 Coke, Lord, 82, 155, 211, 235 collective rights, 179–80 colonialism, xv, 165, 172, 177 common law, 62, 89, 95; constitutionalism, 18, 59, 80–1; human rights and, 80; rule of law and, 32, 82 concurrent majority, 139, 141 Confederation (Canada, 1867): Aboriginal partnership, xv, 13, 172, 176–8; British connection, 20, 23–4, 30–2; Cartier’s views, 21, 183–4; compact theory, 120, 174, 177; compared to American Union, 34–5, 117, 121; concerns and failures, 12–13, 202–4; divided house of, 137; French language protection, 153, 179; Macdonald’s speech, 12; opponents and supporters, 206–7; Quebec’s place in, 55, 59, 137, 161, 173–4; rights of others and, 222–3, 227; Supreme Court discussion of, 21, 132, 146–7 Congress: allotment of tribal lands, 167; courts and, 37, 51, 63; free

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speech and, 101; Nixon’s message to, 164–5; override, 52; power of, 35; slavery and, 140 consequentialist calculation, 104 conservatism, 11, 190–2, 223, 225 consociationalism theory, 133–4 Constitution Act (Canada, 1982): Aboriginal rights, 14, 173, 177, 234; absence of bill of rights, 31, 34; British connection, ix, 32–5, 73, 209–10, 226; crisis, xv–xvi, 131, 188–90, 192, 195, 204–5, 224; as a doctrine of trust, 184– 5; internal architecture, 19, 41, 77, 87, 234; judicial review and, 66; multiculturalism, 96; Quebec and, 55, 146–7, 152; revisions or reforms, 137, 196–7, 199; rights of others, 60, 234; Trudeau’s comments, 45, 171–2. See also Canadian constitutionalism; Charter of Rights and Freedoms (Canada, 1982) constitutional faith (American): built on a dream, 221; Civil War and, 118; freedom and, 127–8, 130, 132–3, 171; free speech and, 95, 102, 106–7; individual autonomy and, 165; judicial review and, 62; landmarks of, 128; liberty and, xvi, 72, 119, 121, 124, 150, 231; principles of, 19–20, 209, 215; Washington’s Farewell Address and, 3; “we the people” concept, 86, 221–2 constitutional faith (British), 78–9, 85, 162, 235 constitutional faith (Canadian): Cartier’s aspirations, 21, 121; common citizenship and, 109;

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compared to US constitutional faith, xvi, 73, 87, 91, 107, 116, 129–30; forward-/backwardlooking dimensions, xi–xii; identity and, 4, 43, 132, 190, 227; key principles of, xi, xvii, 87, 154; national unity and, 130–1; as non-existent, x–xi, 4, 133; paradox of self-determination and, 151–2; political nationality and, 132–3, 229; The Spirit of Haida Gwaii and, 4, 17–18, 20–1; Tory narrative of, 13 constitutional faith (European), 232–3 Cooper, Lord, 155, 157 Corwin, Edward, 64–5 counter-majoritarian difficulty: democracy and, 62, 74, 78; judicial review and, xiv, 58, 61–2, 68, 75; “we the people” concept and, 86 courts and legislatures, 57–8, 61–2, 74–7. See also Supreme Court of Canada; US Supreme Court Cox, Archibald, 51 creed, American, 165–6 Cree Nation, 176 Creighton, Donald, 225 Crevecoeur, J. Hector St John De, 114, 135 Criminal Code (Canada, 1970), 96, 98 crisis: American constitutional, xvi, 83, 138, 200; British constitutional, 210, 215; Canadian ­constitutional, xv–xvi, 131, 188– 90, 192, 195, 204–5, 224; of European democracy, 233; of federalism, 196; flq, 10; New

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Deal, 52; of slavery and American Union, 136, 150, 160, 162, 171; US times of, 115, 135, 189, 205, 209 Croly, Herbert, 220 culture: Aboriginal, 18, 166–7, 171, 172, 177–8; choice and, 16, 116, 171; common, 229; constitutional, 60, 90, 106, 114, 116, 199; difference, 128, 129, 134; of distrust, 101; of liberty, 109; minority, 125, 129; political, 18, 101, 133; Quebec, 141, 143, 176. See also multiculturalism Dawes Act (1887), 167 Declaration of Independence, 3, 64, 128, 178, 217; American civil religion and, 102, 130, 230; inalienable rights and, 24, 50, 215, 220; “life, liberty and the pursuit of happiness” phrase, 26–7; slavery and, 149–50, 231 dehumanization, 98 democracy: American, 49–50, 62, 68, 70–2, 220, 230–1; British, 157–8, 213; Canadian, 10, 40, 54, 73, 78, 96, 132; the Charter and, 74–8; choice and, 99, 113; consociationalism, 133; European, 232–3; judges and, 44, 53; judicial review and, 65, 67, 71; liberal, 16, 101, 113; majoritarian, 36, 72, 132; national unity and, 130; parliamentary, 76, 82; protection of local, 30; small societies and, 218 despotism, 27, 29, 120, 166; Montesquieu on, 34, 119, 233; royal, 211

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destiny: Aboriginal, 13; America’s, xvi, 160, 165, 178, 189–90, 200, 205; Britain’s, 161–2; Canada’s, x, xii, xvi, 4, 172, 183, 188–90, 191–4, 200–4, 206–7; Confederation and, 117, 120; Quebec’s, 141, 144, 162; Trudeau on Canada’s, 5, 8, 9 Devlin, Lord, 105, 111, 113 Diamond, Martin, 50, 56 Dicey, A.V.: on American institutions, 109; analysis of freedom, 88–9, 90; British constitution principles, 84, 213–14, 233; on judicial review, 33–4; The Law of the Constitution, x, 88, 155, 213–14; on sovereignty of Parliament, xvii, 32, 41, 42, 79–82, 214, 230; Thoughts on the Union, 156–7, 158 Dickson, Chief Justice: on Charter values, 57, 60, 74, 234; Keegstra case, 40, 96–8, 105, 107, 113; on multiculturalism, 104 Diefenbaker, John, 192–3, 204 dignity, 36, 57, 78; Aboriginal, 181; equality and, 112, 128; Quebec, 142 Dion, Léon, 138, 141, 161 discontinuity thesis, 196, 204 discrimination, 37–8, 94, 105, 120 distrust of government, 101, 112, 165 diversity: age of, 17; American, 20; Canadian, 4, 40, 44, 127, 179– 80; cultural, 18; of federation or federal, 39, 54, 56–7, 74; provincial, 48 divided houses, xv, 137–8, 150, 160, 162

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Douglass, Frederick, 151, 231 Dred Scott v. Sandford, 149–50, 154, 209, 220 Dunkin, Christopher, 229; Confederation debates, 34, 39, 116–18, 204, 206–7; constitutional faith and, 120–1 Duplessis, Maurice, 7, 31, 47, 141 Durham, Lord, 34, 73; assimilation proposals, xii, 35, 173, 228–9 Dworkin, Ronald: on British constitutionalism, 109; criticism of judges, 37, 150–1; debate on pornography, 99; Freedom’s Law: The Moral Reading of the American Constitution, 234; on hate speech, 40; integrity theory, 81; on judicial review, 62; model of constitutionalism, 36; “rights as trumps” theory, 38, 42

English-speaking Canada, 194, 200, 201, 203, 206; assimilation of French Canadians, 228–9 equality: Aboriginal, 172–3; in Bill of Rights, 178; the Charter’s provisions, 40, 98; citizenship and, 179; liberal precept of, 16, 129; minority groups, 107, 114, 127; natural, 141; social, 125; victimized groups, 105 Erasmus, George, 173 eschatology, 189, 190 ethics of constitutionalism, ix, xvi– xvii, 86–7 Europe, re-creation of, 231–2 European Convention on Human Rights (1950), 79–80, 83, 112 European Union, xvi, 87, 110, 160, 232–3; uk ’s vote to leave, 79, 82, 238n29

Easterbrook, Judge, 40, 93, 95, 99 Edwards v. Attorney General of Canada (or Persons case), xi, 221, 227, 234 Elizabeth II, 155 Elshtain, Jean Bethke, 122 Ely, John Hart: appraisal of Bickel, 68; on “Footnote Four” of Carolene Products, 61–2, 69–70; on liberty and the Constitution, 72; process-perfecting theory, 70–1, 85–7 Emancipation Proclamation (1863), 147, 149, 220 English constitution. See British constitution English Constitution, The (Bagehot), x, 213, 228, 230, 233, 243n35

Farthing, John, 223–5 federalism (Britain), 84, 158, 160 federalism (Canada): bilingualism and, 142; b na Act and, 33; Cartier’s views, xii, 121, 234; the Charter and, 57, 62, 77, 198; compared to US federalism, xiv, 53, 60, 115, 117, 120, 186–7, 234; description of, 108; diversity element, 20, 44, 54; innovative ideas of, 229; judicial review and, 65–6; as a native creation, 34–5; notwithstanding clause and, 44–5, 54, 60; provincebuilding and, 196; Quebec and, 8, 142, 161, 225; significance of, 41, 56, 87; Supreme Court and, 132, 187; treaty, 180, 186; Trudeau’s views, 5, 161, 174

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Index 313

federalism (US): American framers and, 117; diversity element, 20; divided house of, 160; European federalism and, 60, 233; slavery and freedom and, 35, 50, 56, 58, 119, 150, 187; tolerance and, 186 Federalist, The (Hamilton/Jay/ Madison): Hamilton’s contribution, 52, 61; Jay’s contribution, 222; Madison’s contribution, 27, 50, 56, 65 “fellow-feeling,” 110 feminism, 127–30, 134 fighting faith, 91, 102 fighting words, 93, 94 First Amendment (Bill of Rights): exceptionalism, 101–2, 106–7; jurisprudence, 89, 97–9, 102, 104, 111–13; Justice Holmes’s articulations, 91–2, 94–5; obscenity and sexist pornography and, 92–3; political culture of, 101; protection of hate speech, 94; public debate, 107, 111; self-expression and, 92 Fiss, Owen, 86 Fitzhugh, George, 220 Flanagan, Tom, 14–15 f l q crisis, 10 Foner, Eric, 160 Ford v. Quebec, 57–8, 153–4 Fortescue, Sir John, 233 Frankfurter, Justice, 19, 130 Franklin, Benjamin, xii, xvi freedom(s): American, 53, 56, 107, 119–20, 130, 133, 222, 230–1; the Charter rights, 54, 98; cultural, 125; English, 33, 88, 109, 211–13; “for the thought that we

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hate,” 90, 94, 100, 102–3, 106, 107, 110, 186; of multicultural groups, 128–9; republican theory of, 149; self-creating, 9; slavery and, 49–51, 58, 134, 160, 219– 20; threats to, 101; women’s, 127–8 free expression: Canadian pluralism and, 90, 100–1; the Charter and, 98; constitutional faith and, 107; French language and, 57; hate speech / propaganda and, 40, 88, 103; Keegstra case of, 95–7; multiculturalism and, 104; sexual equality and, 98 free government, 219 free labour, 58, 160, 220, 230 Freeman, E.A., 175, 230 free speech: American doctrine and Canadian cases, 95–9, 104–5; in Britain and France, 88–9, 91; Canadian pluralism and, 90–1; clear and present danger test, 91, 94–5; constitutional faith and, 106–7; extremist, 100; First Amendment exceptionalism, 89, 92–4, 100–2, 106–8; government incompetence and, 101–2; Mill’s theory, 110; as negative freedom, 40, 99; overprotection of, 100–5, 113; paradox of tolerance and, 112–13; US-Canada differences, xiv, 90–1, 100–1, 104–5 free trade in ideas, 91, 92, 100, 102 French Canada: assimilation, 228– 9; British government and, 203; exploitation, 142; failure of Confederation and, 203; federalism and, 225; language debate, 137, 141–2; pastoral myth of,

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205; rejection of Washington, 190–1; Trudeau’s distrust of, 10–11. See also Quebec French Declaration (1789), 39, 40, 78, 88–9 French language, 57, 137, 142, 153–4 Friedrich, Carl, 227 friendship, 21 Frye, Northrop, xi, 133, 205, 227 fundamental values, 67, 78, 87, 160 Garrison, William Lloyd, 143–4, 147 Gettysburg Address, 3, 38, 128, 130, 150 Gitlow v. New York, 36 Glazer, Nathan, 123–4 Glendon, Mary Ann, 60 Glorious Revolution (1688–89), 211 Grant, George, xiii, xv; “Canadian Fate and Imperialism,” 201. See also Lament for a Nation (Grant) Grier, Justice, 144 group rights: advocates, 128; the Charter’s recognition, 38, 39, 41, 60; multicultural, 124, 127–9; national unity and, 123 Habermas, Jürgen, 232 Hailsham, Lord, 158, 162 Haldane, Viscount, 66 Hamilton, Alexander, 30, 52, 61, 63, 119; Montesquieu’s ideas and, 28, 42, 226 Hand, Judge Learned, 51–2 Handler, Richard, 138 Harlan, Justice, 179

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Hart, H.L.A., 81, 105, 111 hate propaganda legislation, 90, 97, 103–4 hate speech: British restrictions, xiv, 96, 109–10, 111; constitutional faith and, 107; harm caused by, 103; judicial scrutiny, 99; Keegstra case, 40, 95–8; multiculturalism and, 104–5, 107–8; protection under First Amendment, 90, 94–5 Hawthorn Report, 181 Hobbes, Thomas, xvi, 12, 18, 228; sovereignty, 136, 156, 175, 177 Hogg, Peter, 58, 59, 62, 74–6 Holmes, Justice, 19, 85; “freedom for the thought we hate” idea, 89–90, 94, 100, 186; free speech philosophy, 91–2, 94–5, 98; Schwimmer case, 102, 106–7 Home Rule, 84, 162, 214 Horowitz, Gad, 20, 130–1 House of Commons, 125, 158 How, W. Glen, 31 Hughes, Chief Justice, 70 human rights: the Charter’s recognition of, 23–4, 36, 199; European, 79–80; inalienable, 39; judicial scrutiny of, 83–4; ­liberal conceptions of, 9, 116; protection of, 73 Human Rights Act (uk , 1998), xvi, 61, 79, 82; declaration of incompatibility method, 83–4 Iacobucci, Justice, 61, 78 ideal, American, 71, 115, 134, 135, 231; Canada’s adoption of, 224; elimination of conflict and,

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123–4; Kennedy’s reiteration, 178; Lincoln and, 220 ideal, Canadian, 133, 134, 161 identity (general): Aboriginal, 13, 14, 44, 169, 179; absence of, 131, 133; American, 20, 133, 178, 200; collective, 87; group, 38, 108, 123; limited, 132; loss of, 4, 9; Maritimes, 120; Quebec, 138, 174. See also Canadian identity Ignatieff, Michael, 38 inalienable rights: in Declaration of Independence, 24, 50, 215, 220; liberty and, 116; Trudeau’s conception of, 4, 5, 25, 39, 47, 56, 78, 161 incompatibility, judicial declaration of, 83–4, 85–6 Indian Affairs, Department of, 185 Indigenous peoples. See Aboriginal peoples (Canada); Aboriginal rights (Canada); American Indians individual freedom: American model of, 30, 150, 233; atomistic, 13, 24, 38, 167; governmental power and, 54; liberalism and, 16, 167; Mill’s ideas of, 105; multicultural groups and, 127; Trudeau’s belief in, 6 individual rights: in Declaration of Independence, 24; English liberty and, 32; against government, 29; liberal theory of, 128–9; against majority, 36–7, 44, 69–70; protection of, 49, 58; social pluralism and, 124; sovereignty and, 68, 184 institutions, 100, 109, 226

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international law, 147 Jackson, Andrew, 167, 168 Jackson, Robert, 83 James Bay Cree people, 18 James II, 211, 216 Jay, John, 222 Jefferson, Thomas, 149, 209, 218; “A Summary View of the Rights of British America,” 216–17; view of American Indians, 166–7 Jehovah’s Witnesses, 31 Jennings, Sir Ivor, 80, 210, 234–5 Johnson, Samuel, 149 Johnson and Graham’s Lessee v. M’Intosh, 169 Joly, Henri, 49, 229 judges: American, 19, 40–1, 49, 61, 99, 108, 170; British, xiv, 80, 82, 87; Canadian, 13, 49, 60, 78, 99, 108; common law, 62; constitutional faith and, 209; expediency and principles, 69; function or role of, 51–2, 86; as guardians of rights, 37, 38, 51; interpretation of the Charter, 40, 46, 75–6; Northern (US), 150–1; policy and, 46, 47; power of, 36, 44–5; protection of liberty, 32; Quebec, 153; Scottish, 158; worldwide rule of, 59 judicial activism, 37, 51, 63, 74, 77, 85 Judicial Committee of the Privy Council, 13, 33, 65–6, 151, 159 judicial prudence, 68–9, 71, 72, 85–6 judicial review: British constitutionalism and, 83–4; Canada/US differences, xiv, 33–4, 59, 67, 76;

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the Charter and, 75–8, 85; counter-majoritarian difficulty and, 58, 61–2; liberal constitutionalism and, 47; normal or interest group politics and, 86–7; origins, 63–7; process-perfecting, xiv, 62, 86; representation-reinforcing theory, 71; triune function of, 85–6; un/democratic character of, 52, 60, 61, 64, 68–9 judicial supremacy: American, 13, 23–4, 44, 52, 54, 60; democracy and, 75, 77; Marbury v. Madison case, 25, 63, 83, 85; opposition to, 46 jurisprudence: American constitutional, 69, 96; Austinian, 32, 155; First Amendment, 89, 97–9, 102, 104, 110–13 Kalven, Harry, 254n69 Keegstra case. See Regina v. Keegstra Kelly, James, 75 Kennedy, John F., 178, 192 Kennedy, Justice, 60 King, Anthony, 215, 235 King, Mackenzie, 10, 204 King, Martin Luther, Jr, 220 Knopff, Rainer, 76 Kymlicka, Will, 108, 171, 183; on Aboriginal rights, 14, 16; on individual autonomy, 124–5; on liberal multiculturalism, 128–9 Lament for a Nation (Grant): British values, 23; Canadian ­constitutional crisis, 188–9; Canadian identity, 4, 9, 194–5, 222–5; Diefenbaker discussion,

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192–3, 204; eternal order of Canada, 11–12; failure of Confederation, 203, 206; French Canada, 10–11; introduction to second edition (1970), 193–4; liberalism, 167, 170, 201; Macdonald’s Canada, 223; Mackenzie King discussion, 10, 203–4; tradition of conservatism, 191 language rights, 55, 57–8, 153–4 Laskin, Bora, 33–4 Laurier, Wilfrid, 206 law-breaking, 91–2 Law of the Constitution, The (Dicey), x, 32, 88, 105, 155, 213–14 Lederman, W.R., 66 Léger, Jean-Marc, 143 Lerner, Max, 219 Lester, Anthony, 79 Lévesque, René, 137, 138, 179, 199; sovereignty theory, 141–2, 161, 174 Levinson, Sanford, 230–1 L’Heureux-Dubé, Madame Justice, 57 Liberal government, 125, 192 liberalism: Aboriginal rights and, 14–16; absolute, 6; American, 165–7, 170, 185; Grant’s critique, 9–10, 201; hegemony, 130; multiculturalism and, 125, 127, 128–9 libertarians: American, 12, 35, 185, 186, 191; civil, 51, 90 liberty: American, x, 101, 116, 120–1, 122, 124, 230–1; civil, 10, 31; courts as guardian of, 38; democracy and, 50, 73; English,

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30–2, 109, 212–13, 216–17; feminists and, 128; law and, 211; Lincoln on, 149, 170; positive and negative, 99; power and, 29, 35; small republics and, 28; in US constitution, 72, 119, 127, 186 Lincoln, Abraham, x, 47, 68–9, 72, 138, 145; on American Union, 135, 145, 160; Civil War insights, xv, 118–19, 121; election of, 139; on freedom and slavery, 49, 50, 119–20, 130, 134, 136, 219–20; Gettysburg Address, 38, 150; on liberty, 149, 170; paradox of American history and, 149–50; sympathy for American Indians, 166–7 Lipset, Seymour Martin, 26–7, 255n14 “living constitution” concept, 196, 209, 221–4, 226 Locke, John, xiii, 18, 109, 191 Lougheed, Peter, 46–8, 59 Macaulay, Lord, 212 MacCormick, Iain, 157 MacCormick, Neil, 155, 158 Macdonald, John A.: on American Civil War, 49, 118, 120; centralism, 12, 13, 120, 132; Confederation debates (1865), 30–1; connection with Britain, ix, 12, 32, 35, 190–1, 225, 229; constitutional faith and, xvii; Grant’s discussion on, 223; judicial review and, 66; speech on legislative union, 225–6; Tory vision of Canada, 20–1, 226 MacKinnon, Catharine, 99, 130

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MacKinnon, Frank, 195 Madison, James, 28, 35, 41, 68, 139; Bill of Rights and, 27, 218– 19; distrust of state governments, 56; idea of compound republic, x, 29–30, 37–8, 50, 65, 119; representation theory, 61, 70, 85; as a theorist of division, 160; US Constitution and, 15, 166 Magna Carta, 3, 66, 82, 211 Manfredi, Christopher, 41, 47, 75 Mann, F.A., 80 Mansfield, Harvey, 25 Marbury v. Madison, 25, 63, 67, 83, 85 Marshall, Chief Justice: definition of a constitution, 208–9; Marbury v. Madison case, 63, 85; McCulloch v. Maryland case, 67, 208, 221–2; Worcester v. Georgia case, 168–9 Marshall, Geoffrey, 79, 228 Martin, Luther, 218 McCarthy, Joe, 130 McCulloch v. Maryland, 67, 208, 221, 222 McGee, D’Arcy, 193, 202, 206–7 McIlwain, Charles, 230 McLachlin, Justice, 95, 97–8, 103–4 McPherson, James, 134 Meech Lake Accord, 131, 173; the Charter and, 198–9; failure of, 4, 54–5, 59, 126, 154, 161; federal diversity of, 54; Trudeau’s opposition to, 56, 174, 198 Meiklejohn, Alexander, 92, 106–7 melting pot. See mosaic and melting pot Mercredi, Ovide, 17, 173

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Mill, John Stuart: Considerations on Representative Government, 110; On Liberty, ix, 88, 105, 110, 124; study of Coleridge, 105–6; on the US South, 138 Miller, Justice, 168 Miller v. California, 93, 168 minority rights, xii, 16, 19, 34, 229; autonomy, 124–5; Calhoun’s defence of, 139–40; of Canadian mosaic, 20; language and, 153; liberal theory of, 128–9; protection of, 41, 104, 132, 171, 183; voting rights, 71 modern constitutionalism, x, 18, 227 modernity, 7, 9, 193; disenchanted, 126–7; liberalism and, 167, 170 Monahan, Patrick, 54–5 Montesquieu, 42, 119; revolution in method, 24–5; The Spirit of the Laws, xiii, 26, 27, 35, 39, 156, 233; US Constitution and, 27–9, 34 morality: civil, 230; community’s, 111; of constitutionalism, 156–7, 234–5; enforcement of, 98, 111; law and, 81, 170, 234; political, 91, 230; of slavery, 140, 160 Morton, F.L., 76 Morton, W.L., 161 mosaic and melting pot: constitutional faith and, 130–1, 133, 235; criticisms of, 114–15; halftruth of, 107; Kennedy’s view, 178; multiculturalism and, 108, 116, 127–8; nations and, 173–4; origins, 114; Trudeau’s view, 5, 8; US-Canada differences, xiv– xv, 116, 121, 126

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Mulroney, Brian, 43 multiculturalism: Aboriginal people and, 125–6, 173; American critics of, 123; Canada-US comparison, 20, 121–3; the Charter’s, 40; federalism and, 115; hate propaganda/speech and, 90, 96, 107–8; liberal theory of, 125, 127, 128– 9; mosaic and melting pot theories of, 108, 116, 134; official, 16, 125; Quebec, 148 multinationality, 44, 105, 108, 126–7, 174, 207 mutual recognition, 18, 122, 126– 7, 134–5 Myrdal, Gunnar, 165–6 nationalists/nationalism: Aboriginal, 148, 180–1; Canadian, 188, 192, 194, 223; French Canadian, 11, 203, 229; Quebec, 138–9, 143, 179–80, 183–4, 226; Scottish and Welsh, 110, 157–8, 215, 260n85; Southern US, 134, 138, 191 nationhood, Canadian, 21, 191; American Civil War and, 118, 121; constitutional faith and, 129, 133; ideal of, 134; identity and, 108; multiculturalism and, 125–6 nations, 120–1, 143, 148, 202; Canada as three, 173–4; Quebec as, 203; separation, 202; US-Canada differences, 116, 226 natural rights, 23, 78, 139, 178 Neatby, Hilda, 227 neutrality, 111 New Deal, 52, 69, 83, 86

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“new nationality,” creation of, 202–3 New York Times v. Sullivan, 107, 108 New Zealand Bill of Rights, 83 Nichols, David, 166 Nixon, Richard, 37, 164, 186 normal or interest group politics, 86–7, 101 notwithstanding clause (the Charter), 83, 85, 152, 186; Aboriginal access to, 55–6; Congressional override difference, 52–3; debate over, 44–5, 48, 58–9; opponents and supporters, ix, 39, 43–4, 45–8; Quebec’s use, 54–5, 57–8; use and non-use of, 54 obscenity laws, 92–3, 98, 103 Okin, Susan Moller, 128–9 old Canada, xii, 9, 11–12, 223–4 Ormsby, William, 229 pacifism, 102, 106 Paine, Thomas, x, 210–11, 215–16 Papillon, Martin, 185 Paquet, Monsignor, 6 paradoxes: American history, 149– 50, 175; assimilation and freedom, 171; Canada’s self-determination, 150–1; tolerance, 112–13 Parekh, Bhikhu, 129–30 parliamentary supremacy, 24, 26, 33, 42, 44, 48. See also British Parliamentary sovereignty pastoral myth, 205 patriarchy, 127 patriotism, 6, 110, 204, 232

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people, concepts of the, 67–8, 72–3, 86–7, 222, 230 Perry, Michael, 52 Plessy v. Ferguson, 37, 179 pluralism: American, 60, 171; British, 91, 109, 110; Canada-US differences, 49, 90, 115–16, 121– 3, 133; the Charter and, 39–40; constitutional faith and, xvii, 115, 130; cultural and social, 35, 56, 66, 123–4; fragmentation and, 123–4, 131; free speech and, 90–1, 101, 113; ideological, 20; Madisonian, 70; Montesquieu’s spirit of the laws as, 26; multicultural/multinational polity and, 207, 210; ­presidency and, 139; Quebec’s internal, 141; relativism and, 122–3; The Spirit of Haida Gwaii and, 20–1; Tory narrative of, 12–13 political nationality, 21–2, 132, 134, 183–5, 229 political unity. See American Union; unity, Canadian political vs. natural map, 201–2 Popper, Karl, 112 pornography: Butler case, 40–1, 90, 95; child, 103; dehumanizing categories of, 98; sexist, xiv, 93, 95, 99, 105, 130 Porter, John, 114 Pound, Roscoe, 91 power: abuse of, 29; Britain’s rise to, 212; community, 218; of Congress, 35; federal division of, 32–4, 57, 77, 196, 229; government, 50, 67, 117, 158, 197, 221, 228; imperial, 147; judicial,

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44–5, 48–9, 59, 64, 83; legislative, 31, 42, 77, 230; majority, 36; negative, 139; parliamentary, 82, 159; of the people, 30, 50, 85, 222; of US Supreme Court, 63–4, 83 prejudice, 9, 70–1, 165, 171 premiers, western, 46–8, 49, 53–5, 73 property rights, 64, 65, 69, 71 province-building, 196, 204 provincial governments, 39, 53, 57 provincial legislature, 46, 47–8 public dialogue, 92, 107, 111, 122 Quebec: the Charter’s notwithstanding clause and, 54–5; ­distinctiveness, 126, 148, 152–3, 172; fragmentation, 148; government, 55, 57, 145–6, 153–4; independence or sovereignty, 142–3, 174, 176; language debate, 137, 141–2, 153–4; Meech Lake Accord and, 54, 198; nationalism/nationalists, 138–9, 143, 179–80; partnership in Confederation, 59, 137, 161, 173–4; Trudeau’s views, 6–8 Quebec Act (1774), xi, 227 Quebecois, 142, 143, 147, 148 Quebec Secession Reference (1998): Aboriginal rights and, 18–19; constitutionalism and, 77–8; minority rights and, 21, 56, 234; Supreme Court’s ruling, 8, 41–2, 131–2, 137, 145–8, 152 Quebec separatism: compared to African colonies, 141–2; liberals and, 16; movement, 10–11; referendum, 8, 40, 143, 162, 176,

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199; Trudeau and, 4–5, 7, 66, 151, 161 Race Relations Act (uk , 1965), 96 racism, 37–8, 103, 169, 200–1. See also prejudice Rait, Robert S., 156–7 R.A.V. v. St Paul, 94–5 Reference re Supreme Court Act, 152 Regina v. Butler, 40, 90, 95, 98–9, 103–5, 108 Regina v. Keegstra, 40, 90, 95–9, 103–5, 107–8 religious groups, 109 Renan, Ernest, 151 Report of the Special Committee on Hate Propaganda in Canada (1966), 90, 96, 104, 108 representative government, 61, 70–1, 85, 110, 218 republicanism: American, 26, 30, 224, 226; classical, 119, 149; democratic, 25, 218 republics: compound, 27, 29, 35, 38, 50, 65, 119; small, 28, 56, 65 responsible government, 32, 34, 228 Riggs v. Palmer, 81 rights of others, xi, 60, 221, 222–3, 227, 234, 235 Roach, Kent, 77 Roncarelli, Frank, 31–2 Roosevelt, Franklin Delano, 10, 52, 83 Roosevelt, Theodore, 64, 114 Roth v. United States, 92 Royal Commission on Aboriginal Peoples (rc a p), 15, 176–7, 181–2

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Royal Proclamation (1763), 177, 227 rule of law: in Canadian constitutionalism, 19; common law ­origin, 32, 82; in English constitutionalism, xvii, 32, 41, 79, 88, 213–14, 230; Indian treaties and, 170 Russell, Peter, 44, 47, 55 Sankey, Lord, xi, 221–3, 227, 234 Saumur v. City of Quebec, 31, 33 Scalia, Justice, 94–5 Scarman, Sir Leslie, 235 Schauer, Frederick, 101–2, 112 Schenck v. United States, 91 Schlesinger, Arthur, 123 school desegregation, 36–8, 51, 69 Schuman, Robert, 232 Scotland Bill, 159 Scott, Duncan Campbell, 172 Scott, Frank, 33, 153 Scottish National Party, 160 Scottish Parliament, 155–6, 159 secession: Aboriginal nations and, 176; consensual, 148; Southern theory of, 139, 143–5; Supreme Court of Canada’s procedure for, 137, 145–8, 152. See also Quebec Secession Reference (1998) self, conception of the, 126 self-determination, 148, 151–2, 164, 176 self-government: of American people, 29; Canadian Aboriginal, xv, 15–16, 22, 108, 134, 172, 176–7, 180–1, 185–6; communities and, 158; democratic, 46, 48, 92, 97; of English people, 212; Scotland, 159; tribal, 168–71, 186

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sexual violence, 98–9 Shklar, Judith, xiii, 24 Siedentop, Larry, 232–3 Siegfried, André, 108 Sigurdson, Richard, 74 Slattery, Brian, 184–5 slavery: American freedom and, 49–51, 119, 134, 149, 160; end to, 38; language rights and, 58, 141, 153–4; Lincoln’s position on, 69, 118, 160, 166, 219–20; opponents of, 35; Southerners and, 139, 140–1; US Constitution and, 150–1, 230 Smiley, Donald, 132 Smith, Goldwin: Canada and the Canadian Question, 205; on Canada’s destiny, 13, 200–1; ­criticism of Confederation, 202–4, 206 socialism, 213, 214 Sopinka, Justice, 40, 98 soul, constitutional, 26, 197 South, the (US): nationalism, 134, 138; secession, 139, 144–5, 147, 175; slavery, 139–40, 153, 160 sovereign illimitability, 80–1 sovereignty: Aboriginal, 16, 169, 175, 177–8, 181; American Indian, 186; British ideas of, xvi, 228, 230; Canadian, 152, 173–5, 192; Crown, 184, 187; divided, 136; individual, 124; legislative, 45, 65, 74; of the people, 3, 65, 68, 72, 73, 146, 175; popular, 18; Quebec, 8, 18, 142–3, 176; state, 118, 143, 175–6, 226; Trudeau’s comments on, 47, 226. See also autonomy; British

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Parliamentary sovereignty; self-government Spirit of Haida Gwaii, The (Reid), 4, 17–18, 20–1 Stanley, G.F.G., 174 state governments, 50–1, 56, 218, 222 Statement on Indian Policy (1969), 14, 125, 163, 164–5, 172–3, 186 states’ rights, 67, 118, 120, 138; American Civil War and, 49–50, 226 stereotypes, 93–4 Stone, Justice, 69–71, 171 Storing, Herbert, 243n61 Strayer, B.L., 66 Sumner, L.W., 103–4 Supreme Court and the Constitution, The (Beard), 64–5 Supreme Court of Canada: Aboriginal rights and, xi; American rules and, 60; Charter values and, 57–8, 60; constitutional principles and, 19, 41, 77, 87, 146–7; discussion of Confederation, 21, 132, 146–7; English liberty and, 31–2; federalism and, 56, 187; language rights and Quebec law, 153–4; notwithstanding clause and, 45, 55. See also Quebec Secession Reference (1998); and title of case Taney, Chief Justice, 149, 151, 209, 220 Taschereau, Justice, 31 Taylor, Charles, 100, 108, 126–7, 198 Texas v. White, 137, 144 Thayer, James Bradley, 51–2

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Tocqueville, Alexis de, 29, 48–9, 67–8, 231–3 Tory conceptions: of Canadian pluralism, 12–13; of Confederation, 20, 120; of nationhood, 21; Whigs and, 212 Tribe, Laurence, 71 Trudeau, Pierre, xvii, 49, 175, 208; on Aboriginal rights, 163–4, 172–3, 226; Charlottetown Accord opposition, 56, 179–80; comments on the Canadian Constitution, 171–2; constitutional vision, 45, 47, 48, 55, 125; dream about Canada, 5, 8–9, 40, 55–6; “Federalism, Nationalism and Reason,” 7–8, 151; French language debate, 137, 141; Grant’s criticism of, 10–11; Meech Lake Accord opposition, 56, 174, 198; on mosaic of Canada, 114, 161; “Patriation and the Supreme Court,” 151–2; on Quebec’s destiny, 6–8; Quebec separatism and, 4–5, 66, 148, 161, 239n20; reaction to Charter’s notwithstanding clause, 43, 45, 48, 226; support of the Charter, ix, 23–5, 38–9, 73–4, 226–7; time at Harvard, 5–6 trust, 184–5 truth: argument from, 112; Mill’s search for, 110; political, 219; religious, 9; test of, 91; theories, 107, 110; universal, 18, 106 Tully, Jim, 17–18 Turner, Frederick Jackson, 115, 230–1 Turpel, Mary Ellen, 17, 173 Tushnet, Mark, 58 Tuveson, Ernest Lee, 189

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Underhill, Frank, 206 United States v. Carolene Products Co., 61, 68, 69–70, 171 United States v. Kagama, 168 United States v. Schwimmer, 102, 106–7 unity, Canadian, 39, 42, 55, 202; Charlottetown Accord and, 179– 80; the Charter and, 47, 73, 175, 179, 197, 227; citizenship and, 183; Macdonald’s vision of, 225–6; mosaic pattern and, 115, 130–1; multiculturalism theory and, 123, 125 universalism, 10, 36, 193 Unjust Society: The Tragedy of Canada’s Indians (Cardinal), 14, 126, 181–2 Upper and Lower Canada union (1841), 34, 228–9 US Constitution (1787): adoption, 116, 166; British constitution and, 24; color-blindness of, 179, 230; criticisms, 136, 175; liberty and, 72; Macdonald’s view, 12, 49, 118; Madison’s critique, 15, 56, 70; Montesquieu’s theories, 27–9; power of Supreme Court and, 63–4, 83; slavery and, 150–1, 230; veneration of, 171, 209, 219, 233; Washington’s comments, 3; “we the people” importance, 20, 25, 61, 67–8, 139, 222. See also American constitutionalism; American framers; Bill of Rights (US, 1791) US Supreme Court: democratic intentions, 68, 72; First Amendment and, 92–5; Fourteenth Amendment and,

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36–7; juridical techniques, 68–9; Lincoln’s view of, 145; neutrality, 111; power of, 48–9, 63, 83; public debate and, 52; representation process and, 71; tribal self-government cases, 168–71; Trudeau’s praise, 56; Warren Court, 36–7, 51, 61–2, 69, 71. See also title of case usurpation, judicial, 42, 61, 63–4, 145 voting rights, 36, 71 Vriend v. Alberta, 42, 61–2, 78 Wade, H.W.R., 154 War Measures Act, 10–11 war of races, 34, 73, 117–18, 121 Warren, Earl, 220–1. See also under US Supreme Court Washington, George, x, 3, 135, 149, 217–18, 222; French Canada’s rejection of, 190–1 Weaver, Sally, 165 Weiler, Paul, 44, 53 Westminster Parliament, xv, 79, 82, 159–60, 234. See also British Parliamentary sovereignty Whiggism, 211–15, 226, 228, 230 Whitehouse v. Gay News Ltd, 109, 113 White Paper on Indian Policy (1969). See Statement on Indian Policy (1969) Whitney v. California, 91–2 Whyte, John, 43 Wigmore, John, 100 Wilkinson, Charles, 170 Willis, Gary, 150 Wilson, Woodrow, xvi, 190 Winthrop, James, 175

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women, 99, 127–9, 130, 134; Meech Lake Accord and, 131; Persons case on, xi, 221

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Worcester v. Georgia, 168–9 Zangwill, Israel, 114

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