The Republican Option in Canada, Past and Present 9781442682191

Table of contents :
Contents
Acknowledgments
Introduction
Part One
1. Why Is There No Republicanism in Canada?
2. The Appeal of Republicanism
3. Canadian Attitudes: The Search for Constitutional Balance in Pre-Confederation Canada
Part Two
4. Representation
5. Participation
6. Federalism
7. Citizenship
Part Three
8. Contexts and Contrasts
9. Conclusion
Epilogue
Notes
Bibliography
Index

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THE R E P U B L I C A N OPTION IN CANADA, PAST AND P R E S E N T

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DAVID E. SMITH

The Republican Option in Canada, Past and Present

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

www.utppublishing.com University of Toronto Press Incorporated 1999 Toronto Buffalo London Printed in Canada ISBN 0-8020-4469-7

Printed on acid-free paper

Canadian Cataloguing in Publication Data Smith, David E., 1936The republican option in Canada, past and present Includes bibliographical references and index. ISBN 0-8020-4469-7 1. Republicanism - Canada - History. 2. Canada Politics and government. 3. Republicanism. I. Title. JL15.S64 1999

320.971

C98-932638-1

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council and the Ontario Arts Council. This book has been published with the help of a grant from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada.

To the memory of my grandfathers Ephraim Trueman Smith and Samuel Haythorne

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Contents

ACKNOWLEDGMENTS INTRODUCTION Xi

IX

Part I 1 Why Is There No Republicanism in Canada? 3 2 The Appeal of Republicanism 37 3 Canadian Attitudes: The Search for Constitutional Balance in Pre-Confederation Canada 60 Part II

4 5 6 7

Representation 95 Participation 120 Federalism 144 Citizenship 174

Part III

8 Contexts and Contrasts 199 9 Conclusion 225 Epilogue 233 NOTES 239 BIBLIOGRAPHY INDEX 339

307

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Acknowledgments

Many persons have expressed interest in the subject of this book and I am grateful to a number of them for assisting me with references, suggestions, challenges, and support. Among these, I would like to acknowledge Ruth Abbey, Cheryl Avery, Peter Boyce, John Courtney, Roger Gibbins, Calvin Hanselmann, Andrew Hubbertz, Paul Kopas, Bohdan Kordan, Ged Martin, Lynn MacDonald, Rob Norris, Peter Oliver, and John Saywell. Two individuals I wish specifically to thank are David Atkinson, former Dean of the College of Arts and Science, University of Saskatchewan, for securing release time for me to begin the initial research, and Campbell Sharman, Department of Political Science, University of Western Australia, Perth, for inviting me to spend time at his university and thus actually talk, rather than merely read, about republicanism in Australia. Once again, I am indebted to the librarians and archivists upon whom academic researchers depend and, as before, the staff of several institutions have given unstinting support. I particularly wish to note the help received from the National Archives of Canada, the National Library of Ireland, and the libraries of the University of Western Australia and the University of Saskatchewan. Since it is the staff of the Government Publications Library of the University of Saskatchewan who bear the brunt of my inquiries, I particularly acknowledge their assistance. This book is the product of study made possible by the award of a Killam Research Fellowship in 1995 and 1996. The freedom to pursue uninterrupted research and writing that the Fellowship allows is rare in the modern university. It is prized, too, and I wish to thank the Killam Program for the support given. The award of a general research grant by the Social Sciences and Humanities Research Council of Canada helped

x Acknowledgments to defray expenses associated with research abroad and with manuscript preparation. This assistance I am also pleased to acknowledge. The transformation of a manuscript into a book requires three interventions, that of a typist, a copy editor, and an indexer. To Lorrie Hnatiuk, Allyson May, and Geri Rowlatt, I offer my sincere thanks for their invaluable help. Despite the support, pecuniary and other, that I have received, I alone am responsible for any errors of omission or commission. DAVID E. SMITH SASKATOON, SASKATCHEWAN MAY 1998

Introduction

Since this is a book about a subject rarely discussed in Canadian politics, some explanation for its appearance is in order. Although in Canada republicanism remains largely moribund, in other countries who share its traditions of parliamentary democracy it is a matter of interest, controversy, and polemic. At the end of the twentieth century Australia is the obvious example of a country with a case of republican fever, although there is no agreement on the nature of the complaint the fever manifests. In Great Britain discussion about constitutional change with the aim of curtailing the monarchy and the social structure it supports is on the rise. Debate in Britain and Australia has meaning here, in the same way that the Canadian Charter of Rights and Freedoms exerts an influence over civil rights talk in those countries. If Australia, which is well advanced in its republican debate, were to embark on such a reform, that move would prompt Canada to reconsider her own constitutional monarchy. Given this eventuality, and because Canada possesses little republican discourse of her own, an explanation of the republican option is needed. The focus of the book, then, is not on whether Canada will become a republic - that is impossible to predict but on how to prepare for the debate likely to come. The chapters that follow canvass the subject, investigate the issues, and anticipate the arguments. Today republicanism is the world's most common form of government and Canadians, living next door to the first republic of the modern era, have reason to be familiar with its operation. How complete that knowledge is is open to question; for example, Canadians too often misread the role of the United States Senate. Advocates of a Triple E' Senate (effective, elected, and equal) for Canada are only the most recent propo-

xii Introduction nents to depict its American counterpart solely in terms of federalism. This one-dimensional perspective ignores the upper house of Congress as a crucial component of American republican theory and practice. In this context it might be noted that the United States Senate is not a house of the states, even though each state is equally represented; rather, the Senate pre-eminently embraces the national as well as the local interest. A characteristic mark of the nonrepublican character of Canada lies in the absence of any institution in this country to do the same. 'Nonrepublican/ that is, in the sense in which the term is used in constitutional theory in the United States. For, as this book demonstrates, the exceptionalism of the American experience quickly becomes evident in any comparative study of other republican models. And there are many, although, with the exception of France, all of the principal ones originate in this century. Of these, the history of parliamentary republics like Ireland and India holds promise for constitutional monarchies contemplating change. The transition seems easy because the choices and disruptions involved appear few. In fact, however, as those Australians who are promoting a republic by the year 2001 have discovered, changing the constitutional form of the head of state involves more than a matter of forms. This is a truth both classical political theorists and the American founding fathers, who were educated in the classical theorists, knew: republican government is about government first, and symbols second. Canada has never had a republican movement, although before the arrival of responsible government radical advocates like Louis-Joseph Papineau and William Lyon Mackenzie sought to instal republican institutions. Later, after the principle of responsible government was in place, conservative proponents sought to check its perceived excesses of executive power by means of the same institutions. They failed, and for the past century and a half no powerful countervision has challenged Canada's parliament-centred government and constitution. Constitutional monarchy reinforced a disposition to privilege institutional and to limit popular participation. The strength of the Crown-in-Parliament may explain why constituent power is weak in Canada and Great Britain; it fails, however, to explain why the same condition does not prevail in Australia. It is a central tenet of Australia's republican movement that the Australian people are sovereign and, therefore, both Parliament and the monarch are subject to their will. Once that proposition is accepted, it follows, so advocates say, that an Australian republic is inevitable. It would falsify the truth to claim any comparable republican pattern

Introduction xiii in Canada and, in its absence, to talk of any outcome being inevitable. Moreover, sentiment favourable to a republican option would face serious obstacles to its realization. The chapters in Part Two of the book examine Canadian theory and practice with respect to representation, participation, federalism, and citizenship. In each instance it is clear that the Canadian approach to these issues diverges significantly from the conceptions offered by republican or, in the case of Australia, neorepublican theory. To determine the accuracy of a witness's testimony, it is common in police work to employ what is called perspective viewing. When shown a photograph of the setting of a crime, a witness is asked to describe not what he or she sees but what he or she does not see. What is on either side of what appears in the picture? In Canadian politics, where activity is monopolized by formal institutions, it may be useful in a discussion of republicanism to think about what is happening out of the range of official politics. If republican government implies limitation by, and not of, the people, but political activity in Canada is regulated, restricted, and channelled into formal institutions, then an important question becomes whether there is any access to politics from outside as opposed to inside the institutional structures. In brief, is there latent republican sentiment in the land even if there is no overt republican commitment? Part Three examines that sentiment, asks whether it is the same thing as political populism, and evaluates the influence of each on the established institutions of Canadian government. This book is dedicated to my grandfathers, Ephraim Trueman Smith and Samuel Haythorne. Both men died young: one in the Nova Scotia county where he was born, the other, an English immigrant member of the Canadian Expeditionary Force, in France. Ephraim Smith's ancestors arrived from Ireland in Cumberland County in 1775. Of his eight children, only two made their home outside of Nova Scotia. In a New World country, the Smiths stayed within their region or, when temptation proved too strong, left briefly for the Boston states. Their Canada was the stuff of neither Loyalist legend nor imperial patriotism. Methodist farmers, theirs was a provincial world. By contrast, at age twentyseven Samuel Haythorne arrived in Hamilton, Ontario, from Sheffield, Yorkshire. He worked for the Hamilton Street Railways before joining the i73rd Highland Battalion. Sent overseas in 1916, he was killed in action in 1918.

xiv

Introduction

The Haythornes radiated the assumptions of the English working class: King and Empire were as prominent in their ordering of the world as each was absent from the daily life of the Smiths. The political affections these men bequeathed may have been different but the legacy of both proved transitory. The Haythorne world of a British Canada is vanished, while the constricted regional outlook of the Smiths is no less unreal in modern bilingual and multicultural Canada. In neither family did Quebec, with its different language and religion, consciously impinge in any way beyond the merely notional. At the end of the twentieth century, Canada's quest for a unifying principle would mystify them both, since neither man saw Canada as a whole but rather as a part of something larger or as no more than the sum of its parts. The republican symbol was as inconceivable in the greater Britain of the English immigrant as republican union would have been for the lesser Canada of the Nova Scotian farmer. That is to say, there are few roots to republicanism in Canada and no continuity to those that do exist. The argument advanced for republicanism here, unlike in Australia, can never be that it is an idea congenial to its environment.

PART ONE

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1

Why Is There No Republicanism in Canada?

A book about republicanism in Canada labours under the handicap that there is no republican movement in Canada, no believers to extol its worth, no literature to advance the creed. Very occasionally, in the last century rather than in this, and then only temporarily, some individuals adopted a republican future as their own. But, with the notable exception of the Rebellions of 1837, constitutional change was expected to flow from achieving other objectives, most often economic, and usually believed attainable through annexation to the United States. Unlike countries with which she has much in common, Great Britain and Australia, Canada has never had a republican moment, a time when republican emotions and ideas captured the attention if not of a majority then of a passionate minority. This is a silence that needs to be filled. Certainly, there has been ample opportunity for republicanism to enter Canada. Long the only monarchy in the Western hemisphere, Canada stands metaphorically at a constitutional divide between the Old and the New Worlds. Despite this location she has proved impervious to revolutionary ideas, even though among Western countries she maintains the closest relations with the oldest republic of the modern age, the United States. Nor for that matter has Canada's filial relationship with France which, in the words of Eric Hobsbawn, 'provided the vocabulary and the issues of liberal and radical-democratic politics for most of the world,'1 offered any more accessible route for political infiltration. The potential for republican contagion is, moreover, not limited to external influences. Canada's political culture took form as a fragment of Great Britain, whose own political tradition from the seventeenth to the mid-nineteenth century embraced a vigorous republican ideology. Neither proximity nor ances-

4 Part One try has done anything to secure the admission of republican ideas into Canadian public debate, and it is the resistance to the ideas rather than the failure to put them into practice that puzzles and begs explanation. The Coming Debate More than historical curiosity, however, lies behind the question posed in the title of this chapter. The answer it elicits will inform the argument found in subsequent chapters, since they deal not with what has happened constitutionally but with what is destined to happen. Use of the word 'destined' suggests a degree of certainty not normally associated with political matters; nonetheless, a debate on a republican future for Canada is as close to being inevitable as anything in politics is likely to be. And the debate will come early rather than late, because events elsewhere make the subject impossible to avoid. In Australia controversy over the future of the country has gathered momentum since the constitutional crisis in 1975. In that year the governor general, Sir John Kerr, dismissed the prime minister, Gough Whitlam, and his Labor government when they failed to carry supply through the Liberal-dominated Senate and also refused to resign.2 Australia's somnolent republican movement, the origins of which can be traced back more than a century, was jolted into life and has since propelled the prospect of an Australian republic to the forefront of national politics. In March 1996, after thirteen years in power, Labor was defeated - but not before the outgoing government of Paul Keating had pledged to put a referendum to the people inviting them to create a federal republic by the Commonwealth's centenary, i January 2001. Although his successor, Liberal John Howard, is personally a monarchist, that does not mean that Australia's move toward becoming a republic has been reversed, or even stopped. In February 1998 a Constitutional Convention of 152 delegates, half appointed by the Howard government and half elected, met in Canberra for two weeks to seek agreement on a republican model, which the prime minister promised to put before the Australian voters in 1999. By the time of the convention, Mr Howard's monarchist attachment had made him one of a minority in his own government. Still, Labor Party policy has not changed, support for the measure remains evident, and state government initiatives in a republican direction are growing. In short, defeat of the Keating government did not mean collapse of the republican movement.3

Why Is There No Republicanism in Canada? 5 The Australian case for change is driven by the symbolism of monarchy. Symbolism in politics, and especially republican politics, is a subject for later discussion. But as a general observation, it can be said that both academic and popular appeals to republicanism in Australia recognize the utility of the symbolic argument.4 The case for change is impelled by the view that monarchy is an anachronism from the country's colonial past and a blot on its international stature. (When Keating announced his government's republican strategy in 1995, he noted that of 185 members of the United Nations, only 15 did not have their own head of state. Of these, fourteen (including Australia) were 'former British Dominions').5 Loyalists reject that perception in terms familiar to Canadian listeners: the monarchy, they say, is Australian, not foreign; the Queen is head of state because she is Queen of Australia and not because of her position as head of state in Great Britain. A substantial literature documents the case for both sides. While it is not the responsibility of this book to evaluate the arguments advanced in the dispute, subsequent chapters will examine the claims made in the larger context of republican theory. Here they deserve mention only to stress that the Australian debate (as articulated by the Labor Party and its supporters) is focused on what critics say is 'a remote and inadequate' symbol of the nation6 and to emphasize that a major political party has aligned itself with this fundamental constitutional reform. The situation is altogether different in Great Britain, where no party, let alone a governing party, has pledged itself to abolish the monarchy. That being said, an atmosphere of constitutional uncertainty nonetheless exists. This uncertainty is fed by the sweeping victory of the Labour Party in 1997; a year earlier Labour leader Tony Blair announced a plan to reform the House of Lords by extinguishing through legislation the right of nearly 750 hereditary peers to sit and vote in the upper house. And even before public criticism of the royal family's response to the death of the Princess of Wales, the Independent on Sunday published poll results that reveal an historic loss of confidence in the monarchy. Between 1990 and 1996 loyal subjects who thought the monarchy would survive the next half-century fell from nine in ten to one in three. Reasons given for the decline in support ranged from loss of respect for members of the royal family (but not for the Queen personally), to issues of monarchy's cost, its isolation from the concerns of ordinary people, and the contribution it makes to Britain's image.7 This popular bill of indictment is not new, only harsher and more personal in the criticism it advances: harsher than the guarded comments

6 Part One usually uttered by those in public office and more personal than proposals from reform groups like Charter 88, which seek specific changes such as limits on the government's monopoly of the Crown's prerogative powers in the matter of appointments, finances, and foreign relations.8 The change of tone is important, and not only for what it signifies for future developments in Great Britain. Its echo is destined to be heard across the Atlantic. In his Massey Lectures for 1994, entitled 'On the Eve of the Millennium,' Conor Cruise O'Brien voiced 'doubt whether the monarchy can survive until the end of the next century.' He also expressed 'fear that its disappearance may wrench the fabric of British society in such a way as to endanger British democracy and even - in conjunction with other forces - endanger democracy in the West in general.' The dangers arise from 'changes in [society's] value system [which] begin to eat into the royal family itself,' 'the long-term decline in deference/ and 'the communications revolution.' These are not original observations, as O'Brien admits, except when he combines them to show how, taken together and in relation to royalty, they become the ingredients for political pornography. When that happens, he says, they have 'the power to delegitimize, by stripping the high ones of respect and exposing them to contempt.' As a consequence, 'pornography ... has ... an enormous revolutionary potential.'9 O'Brien's analysis of the future of the British monarchy is disturbing in a way that debate over abolishing the Australian monarchy is not. Monarchy is the root of British life; along with the established church and an hereditary aristocracy, it touches every aspect of society. Whatever benefits loyalists in the former dominions may claim for kingship, they cannot say that it has determined the arrangement of their New World societies. Indeed, the principal difference between the British and the collateral Commonwealth Crowns is found in the position they occupy in their respective societies, and that difference is of crucial importance in any assessment of the implications of reform and, especially, of abolition. O'Brien acknowledges as much when he describes 'the British monarchy [as] primarily a national institution; [with] its Imperial and later its Commonwealth role, being secondary.'10 Writing a century and a quarter earlier, Walter Bagehot, in The English Constitution, must be assumed to have shared that view, since he said nothing at all about the role of monarchy outside the British Isles. This was a signal omission for an authority now credited with 'invent[ing] a career' for monarchs, a career (despite Bagehot's ethnocen-

Why Is There No Republicanism in Canada? 7 trism) later adapted for the sovereign's surrogates abroad and incorporated by reference into the unwritten constitutions of the old British Dominions.11 However understandable this British-centred concept of monarchy might be for those in the land of its birth, it poses problems for systems whose heads of state share the person of the British monarch. Vicarious debate will occur over issues that are remote to the concerns of countries like Canada and Australia and beyond their power to influence. A debate is not a decision; in any case debate in Britain about monarchy has hardly begun and, in the absence of advocates for particular change, lacks form. Nevertheless, its terms are, and will remain, British. Thus Canadians must look to the operation of constitutional monarchy within the confines of their own constitution and decide what changes, if any, are required. There is no evidence that Canadians have thought about this, any more than they have thought about republicanism. The one time the Canadian monarchy became a live political issue was in 1978, when the office of governor general appeared in the Trudeau government's proposals for major constitutional reform (the Constitutional Amendment Bill). By this legislation the governor general was to take precedence as 'the First Canadian' and the powers of the office, hitherto based on custom and convention, would have been rendered explicit in statutory form. In the event, strong criticism from constitutional authorities and provincial premiers, along with controversy over other institutional change, including a reconstituted Senate as an elected House of the Federation, condemned the initiative to failure. The next time there is a debate over monarchy in Canada the stakes will be higher: at issue will be its retention, whether to stay with the status quo or to move to some form of republican government. It is possible to be so categorical in this matter because there are no other choices. To refer to Bagehot once more: 'first-rate nations,' he asserted, had to choose between presidential or parliamentary government. 'No state,' he argued, 'can be first-rate which has not a Government by discussion, and those are the only two existing species of that Government.'12 That is why the question of a republican option in Canada's future is unavoidable. Whether that option is taken is not the issue; rather, it is the certainty that the question will be raised. With that conviction in mind and at the same time recognizing the apathy and, in some quarters, hostility to republican ideas in Canada, this chapter and its successors set out the background and the considerations that must inform the coming debate.

8 Part One Definitions and Distinctions To prepare for the debate it is important to be clear about terms, beginning with the two central concepts, monarchy and republicanism. At one level the contrast would seem simple enough: a monarchy is a system of government in which there is a king, in a republican system there is no king. But as Chapter 2 will show, the meaning of republicanism is less easy to explain than this simple dichotomy would suggest. More specifically, the concept reaches beyond the composition of the executive. Of concern is the extent to which all parts of the constitution promote popular participation in the affairs of the state and the degree to which each part acts in harmony with the others: institutional balance is an essential element of republican theory. While these are fundamental matters in explicating republican forms, they hold interest for other systems of government as well. In constitutional monarchies such as Canada, demands for procedural and institutional reform - most persistently Senate reform - bear witness to this overlap of mutual concern. Indeed, that overlap draws attention to a claim frequently made by republican theorists, that monarchical and republican forms are not necessarily incompatible. It is even possible for a republic to have a king.13 How this can be so must await later elaboration, but that it is deemed possible should alert those interested in republicanism to the complexity of the subject. The ambiguity is partly the result of the popularity of republicanism in the twentieth century. For Canadians, who have lived alongside the United States since before there was a United States, this perspective may appear distorted. Nevertheless, and looking beyond North America, it needs to be remembered that as late as the end of the First World War 'France [was] still the only great European republic/ a distinction Anglo-American observers attributed to the Third Republic's reputation for instability, and thus an unhappy model 'to invite imitation.'14 Republican government has now become so much the accepted ruling form - the expected last stage of constitutional development - that it is easy to forget its recent ascendancy. It was events associated with the two world wars, when old regimes and colonies were replaced by independent republics, which moulded an attitude that accepts republican government as natural and proper. This is a presumption which, in Canada at least, Eugene Forsey volubly and vigorously disputed.15 But the imprecision that surrounds the republican concept is not solely the consequence of its late arrival as the constitutional standard.

Why Is There No Republicanism in Canada? 9 It is also the product of its unopposed success, for republicanism gained the field more by default than by design. It has never had to defend itself. While it is true that the major thinkers of Western political thought, among them the authors of the Federalist Papers, Montesquieu, Machiavelli, and the classical theorists, wrote about republican rule in one form or another, it is also the case that what they had to say fired few of this century's republican leaders to action. On the contrary, republicanism became the automatic replacement regime in the wake of the collapse and withdrawal of imperialism. Ireland and India, for example, declared themselves republics in 1949 and 1950, respectively, in order to sever the last visible ties with Great Britain. It is difficult in either country, before or after independence, to find philosophical arguments being advanced for republicanism as a more perfect form of government. On the contrary, the culture of the government in these countries, as distinct from that of the people, scarcely changed at all.16 The successor states of the earlier Austro-Hungarian empire opted for republican structures in a similar pragmatic spirit. The Czech democracy born in 1918 was expected by those closest to the negotiations to be an independent monarchy under a foreign prince - Russian (until the Revolution), then Belgian or Danish. Only as the war drew to a close was it agreed at Geneva that the country 'would be a democratic republic and that [Thomas] Masaryk [who had accepted a monarchy as inevitable] would be its first president/17 In these instances what mattered was national independence, with republicanism the means to signify that achievement. The same cannot be said of Canada or Australia today. They are and, except in the most formalistic way, have been independent for over sixty years. Thus the republican debate in Australia now, and in Canada to come, must proceed along a different course: the drive to republicanism in these countries must emanate from internal rather than external considerations. Where, in the cases just cited, the need was to demonstrate to others independence from a former dominant power, in the latter instances the need is equally or more to convince themselves (or that portion who experience doubt) that they are a community. That at least would seem to be the conclusion to draw from Paul Keating's defence of an Australian head of state: 'We need to be in every case, including the symbolic one, our own masters. It is why the affirmation of our nationhood is central to our psychology/ If, as one observer has said, Australian republicanism is a '"post-colonial" movement' - an act of repossession, so to

io Part One speak - it is one that addresses more directly and urgently its fellow citizens than it does outsiders.18 The spurts of republican growth after each world war were paralleled in Canada by initiatives to assert a national identity, first in the international arena and then domestically. At the Paris Peace Conference, and later at the League of Nations and in relations with Great Britain during the 19205, Canada vigorously defended Canadian interests and, in the process, gave substance to her external personality. After 1945, she took initiatives to promote a national identity at home by advancing cultural policies broadly defined and by creating the concept of Canadian citizen in addition to the existing status of British subject. But the quest for independence and an identity inside or outside Canada never matured into either official or unofficial sentiment to sever constitutional ties with Great Britain and form a republic. Canada's search for national autonomy in the first half of this century and the impact this had on the country's muted republicanism is explored more fully below. The lineaments of republicanism remain unclear because there is no genus republican. Instead there are the republics of Greece and Rome, Venice, seventeenth- and eighteenth-century England, America and France, and the much larger number that appeared in this century. (This is not an exhaustive list - Switzerland could be mentioned - but it is sufficient to indicate the historical rhythm of republicanism.) Do these systems that claim a common name actually have anything in common? From the point of view of the traditional republican ideal, which sought (using different terminology to be sure) to keep the executive subordinate to the legislature and both subordinate to the people, the answer must be no. The republican systems created this century are overwhelmingly parliamentary republics, distinguished by the absence of a separation of institutions, which is the hallmark of the United States constitution and a crucial index favoured by earlier republican theorists. Here again is another distinction to complicate the republican debate. But if content is put aside for the moment, then all republican models share one feature that is significant in the context of this study - the belief that as a form of government republics can be engineered. The idea that republics are malleable and, by implication, that monarchies are not, is highly important to the discussion that follows. Australians are learning, for instance, that the unwinding of monarchy from the processes of parliamentary and cabinet government is less simple or practicable than the proponents of this last 'colonial' reform have allowed. Of course dynasties can be created (Norway, for example, created one in

Why Is There No Republicanism in Canada? 11 1905), but the constitutional import of that action is restricted to the executive. Republics are another matter: the only limit on change is what can be agreed upon. In the final analysis, then, republics are based on the acceptance of rules rather than rulers. Admittedly, this language sounds idealized in a world where parties and politicians wield power. Still, the distinction is basic and its foundation authentic. In those republics that are not just mock monarchies but where the classical concerns for balance and participation remain alive, attention to rules and the procedures invoking them assume prominence. The repuublican system Canadians are most familiar with is the American one; the American system is their republican referent. And the contrast between how these two systems deal with essential issues - representation (the different history of the rep-by-pop principle), citizenship (the contrasting weight each country gives to political considerations), or federalism (the principle of state equality enunciated in the Northwest Ordinance of 1787 versus special status for every province in Canada) underscores that north and south of the international boundary different political cultures prevail. The question this book must eventually answer is whether republican and monarchical constitutions are responsible for the difference. For the moment, it can be said that on the Canadian side politics are conducted to achieve effect, a style of ruling which elsewhere has been labelled managerial or purposive. On the American side, in a system where power has been deliberately shared out so that it cannot all be grasped in the same hand, and where, as a consequence, the concept of governing is incongruous, politics are about access rather than ruling.19 Government by design is one of the chief attractions of republics, for they offer opportunities to renovate institutions and redistribute powers. For this reason republican metaphors tend to be mechanistic in allusion, monarchical ones organic. And the artifice in republicanism lends credence to the idea that it is a governmental form of 'rigid simplicity.' The aesthetic suggested by that phrase is yet another subject for later discussion, although it can be said to embrace art, literature, and architecture. But the political cast of the description, which is credited to Catharine Macaulay, friend of George Washington and radical critic of David Hume and Edmund Burke, has been long and influential.20 A century later A.V. Dicey focused on the adjective. In the most influential work of constitutional law of the Victorian era, Dicey celebrated the flexibility of English institutions through invidious comparison with the 'rigid' institutions of the post-Napoleonic republics of France.21 Dicey's

12 Part One opinion carried great influence over the generations, adding to historic English distrust of the French a denigration of their political aptitude and practice. Neither the whiff of the guillotine nor institutional failure, however, hung over the other great republic, the United States. The British knew the Americans and, generally, were unstinting in their admiration of them and their potential. If there was a reservation it lay in the practical and acquisitive politics practised by the citizens of the republic, a politics neither mediated nor tempered by transcendent loyalties. It remained for Walter Bagehot, again, to summarize in memorable fashion this distinction between the two greatest powers of the AngloAmerican world. Monarchy was strong government, he said, because it was intelligible and it was intelligible because people were emotionally committed to the sovereign. It was, if one might be excused the verbal play, effective because it was affective. On balance, monarchical government was easy government. By contrast, he believed, government in a republic deals 'only [with] difficult ideas.' If sentiment and ceremony are not absent, they are at the very least kept to a minimum. Republican government depended for support upon appeals not to emotion but to the reason of its citizens.22 It was also in this regard - to return to Catharine Macaulay's useful phrase - that the simplicity of republics might be found. If republicanism means more than government without a king, monarchy means more than government with one. Monarchy of the British style, which is the style at issue here, permeates the political system over which it reigns. This is as true of Canada and Australia as it is of Great Britain. In each country justice is carried out by the Queen's judges, laws are enacted with royal assent, administration is the responsibility of the Crown. All of this is so commonplace and accepted as to occasion little comment from the citizens of these countries and yet, in a discussion of republicanism, it should. For it is the very ordinariness of the Crown, rather than its majesty, that indicates the intricacy of the concept.23 For instance, it is said by those who are promoting a republic in Australia that they want to replace a hereditary with an elected executive. But the monarch or her surrogate, in the case of the governor general, is not an executive only. Monarchy is more, the Australian critics point out, than 'a mere element' of the constitution; it is the rock on which the whole edifice stands.24 As Bagehot understood, it is easy in a monarchy to personalize government. The implications of that assessment, however, go further than

Why Is There No Republicanism in Canada? 13 he implied. The meaning of citizenship, loyalty, even personal identity can become embedded in monarchical attachments; more than that, these attachments once were imperial. Canada and Australia would not be monarchies now had Great Britain not been an imperial power. The spirit of empire in late-eighteenth-century North America was different from the spirit of empire a century later in the South Pacific, but in either case and well into this century, it was imperial sentiment nonetheless. This is a point too easily forgotten in an anticolonial age: for most of her history Canada was more than a colony, she was part of 'a worldencircling empire, its railways filling the gap in communication between Europe and the East, its natural resources contributing to a global technology, its young men taking part in the only social activity they were really wanted for outside Canada, imperial wars.'25 There is another feature about monarchy in North America that needs to be recalled: the contemporaneous histories of early modern Canada on the one hand and the reign of Queen Victoria on the other. The combination of new communication technology, mass literacy, and royal longevity imprinted on the country's landscape - and in its gazetteers - one dominant royal personage. This national attachment to Queen Victoria provides an opportunity to make a final comment about monarchy at a time when republican interest is expected to rise. Allegiance to the Crown has traditionally acted as a check on republican sentiment; that was certainly the effect of 'the imperial tide' at the end of the last century, with the Queen-Empress at its head.26 It was the sentiment expressed at the beginning of Victoria's reign, too, when advocates of democracy in Lower Canada (including Papineau, Cartier, and Plessis) nevertheless expressed the belief that 'the accession of a young Queen afforded a favourable opportunity for renewing the conditions of the social compact.'27 As textbooks commonly note, sovereigns reign but do not rule; political parties may oppose one another but they are loyal to the throne and, because they are loyal, government of one party peacefully succeeds government of another. The significance of that homily has become dulled by familiarity and political stability. Yet a study of radical political movements in Britain or her possessions underscores an important truth: the Crown was equated with the constitution and loyalty to the one signified loyalty to the other. Those who sought radical change had reason to value the crown for its protection. Of course, some monarchs were seen as good, and some not so good, but monarchy as an institution never fell into disrepute.

14 Part One Catharine Macaulay, who witnessed both the American and French revolutions and who became a fervid republican sympathizer, visited France a few years before the storming of the Bastille. A memory she took home and later recorded was the striking absence of monarchy in daily French life, save for passport and customs control. The implication of her comment was that the French were in advance of the English in moving beyond feudal loyalties. The accuracy of that assessment is not the issue - clearly Macaulay was not representative of her age or her country. The importance of her observation lies in the revelation that monarchy assumes multiple aspects and that the institution may cease to function even while the king lives.28 Similarly, there is a big difference between the ancien regime and modern-day Australia, Canada, and, for that matter, Great Britain. No one can accuse the Queen or her representatives of Bourbon pretensions. But while this is true, it also misses the point that monarchy, today as two centuries ago, is about more than a person. It is about attitudes toward governing that pervade the political system and, in the constitutional monarchies under discussion, it is the political executive who believes most implicitly in these assumptions. Australian Precedent Sir Joseph Pope once observed that when it came to Canadian politics 'Australian precedent [isl no precedent.'29 It is true that much of what Australia does politically has never found favour here; compulsory voting, deviations from the simple plurality electoral system, and bicameral state legislatures would be supporting examples. Nevertheless, in the future Canada will follow Australia's lead in debating republicanism but for her own reasons rather than for the reasons advanced by republican advocates in Australia. Later chapters will look at institutional and procedural reforms compatible with republican values that might hold appeal for Canadians. For the moment, however, it is necessary to examine what appears to be the primary motivation of the Australian Republican Movement (ARM) and in doing so, to note its near absence as a sentiment in Canadian politics. The case made by ARM proponents of reform is simple: get rid of the Queen. There is nothing theoretical or abstruse about the proposal, nor is abolition of the monarchy presented as a culminating step that would see the political life or values of Australia improved. On the contrary, abolition is the end in itself. Why such an unsophisticated rejection?

Why Is There No Republicanism in Canada? 15 Whether ascribed to 'hostility' or 'hatred/ antipathy toward monarchy among these republican supporters in Australia is strong.30 Part of the reason for the vehemence, some say, lies in the fact that the hostility is less toward monarchy in principle than it is toward the 'British monarchy and aristocracy in particular.'31 In these attitudes the contrasts with Canada and parallels with Britain are strong. This vehemence accounts for the absence of moderation in the debate over whether to keep or abandon Australia's monarchy. There is no room for partial measures or limited reforms. Not every republican proponent hates the British connection, but even among those who do not the monarchy is seen as a diminution of national independence. As a recent governor general of Australia has suggested, 'the most powerful argument for a republic is this one: why should we have an absentee Head of State?'32 There are several sources for the opposition to the monarchy in Australia, but whatever their roots they now share, in varying degrees of emotion, antipathy toward a representative head of state. By that term is meant a head of state whose position, whose very being, is derived from another. Without a head of state grounded, so to speak, in Australia, a feature of the republican movement noticeable to outsiders assumes importance: the evident longing for a complete national existence separate from that of another state, in this case Great Britain. Again, the contrast with Canada today or, indeed, at any time in her history, is strikingly captured in a comment made by Arthur Lower in 1985: 'We have never had any quarrel with our parent... I don't think even to this day that there is any suggestion of animosity in the relationship.'33 With the exception of an antimonarchical editorial campaign recently and sedately launched by the Globe and Mail (to replace the Queen at the end of her reign by a nonhereditary ruler chosen by the 150 Companions of the Order of Canada), there is no Canadian equivalent to these Australian expressions of disinterest and distaste for a representative head of state. The reasons the Globe and Mail gives for its idiosyncratic proposal are, first, that the monarch is a 'foreigner' and second, that Canada is mature enough to have its own head of state.34 The premise of the last argument is no doubt true, but the conclusion lacks conviction in the near-resounding silence accorded by the Canadian public to the proposal. Unlike the Australian case, there is no fervour, even among a minority, for abolition, nor is the little sentiment that is expressed tinged with anglophobia. The monarchy question is not unique. In Canada it is exceedingly rare to discover any disposition toward abstract political thought. This is not

16 Part One to say that Canadians have not spent time discussing the structure of federalism but, as a series of failed accords and agreements stand witness, these discussions have centred in the main on creating consensus and sharing power. Aboriginal self-government constitutes an exception to that generalization, in part because of the role the courts have played and in part because of the influence the Charter of Rights and Freedoms has exerted on conceptions of group identity and autonomy. Whether republican institutions would contribute to or hinder the negotiation of aboriginal self-government is a subject for later examination. Nonetheless, it should be noted that it is aboriginal people today in Canada who speak most often and with the greatest feeling about the place of the Crown in their lives. In general, then, Canadians are an unspeculative people. It is a characteristic visitors have commented upon before. In his complimentary monograph, Canada: An Actual Democracy, James (Viscount) Bryce drew a number of comparisons between the politics of Canada and the United States, and in the process emphasized as a feature of Canada (borrowed from Britain) that 'hardly anything in it is traceable to any abstract theory.'35 This cannot be said of Australia, either about the present republican debate or about past debates, over the representation formula used to redistribute parliamentary seats or, a century ago, the pre-federation discussions that led to the incorporation of an un-British-like referendum procedure in the amendment provisions of the new Commonwealth constitution. If Australians have been less traditionally British from the outset in their commitment to procedure and rules - indeed to form - they have differed from Canadians, whose first concern has been to keep the basic political agreement intact. To that goal, principle, form, and logic are secondary. Institutionalized ambivalence is the subtitle of a recent book on public policy in Canada, but the attitude it depicts is more pervasive than this, extending even to the question of monarchy.36 The indictment of monarchy in Canada as foreign or of the governor general as a representative head of state consequently carries little weight. However, it would be a mistake to interpret the absence of republican sentiment as an endorsement of monarchy. On this question Canadians inhabit a noman's land. Near the end of the Second World War, Escott Reid, then a young officer in External Affairs, circulated among his colleagues a Twenty-Four Point Draft Programme for the Abolition of the Vestigial Remnants of Canada's Former Status of Colonial Subordination and for the Creation of Appropriate Symbols of Canadian Nationhood/ In addi-

Why Is There No Republicanism in Canada? 17 tion to proposing the 'abolition of the office of Governor General and substitution either of Administrator, as provided in the B.N.A. Act, or of Counsellors of State as in the U.K.,' Reid also proposed 'changing] ... the royal title, so far as all Canadian documents are concerned to King of Canada.' One of those receiving the draft program was Gordon Robertson who, in reference to Reid's anticipatory strike at the monarchy in Canada, perceptively observed: 'I don't think Canadians will like the term "King of Canada," no matter how logical it may be. Whatever the legal facts are, most Canadians, I think, have not thought of themselves as citizens of either a republic or a monarchy.'37 At one level the style of the Queen's title, even more than the question of monarchy itself, must seem arcane speculation. Yet, when probed, the issue goes to the heart of the question posed in the title of this chapter. If republican advocates in Australia are motivated by a longing to fill the void created by an absentee head of state - to have a nation at one with itself - why is this sentiment absent in Canada? One does not have to invoke the language of post-modernism or to accept the analysis of abolitionists to see that the Australian perspective is markedly different from the Canadian. Conversely, to see the difference but ignore its significance would be a serious omission. For if Canadians lack imagination, if even a minority of them have no vision when compared to their Australian cousins, is the explanation a fault of character only? Or is it, as one of the very few Canadian analysts to write about the matter has suggested, due to some fundamental but still insufficiently considered factor of Canadian culture? In the late 19605, John Con way, a professor of humanities at York University, explained the impact of what he saw as the 'dysfunctional' symbolism of the Crown in Canada.38 In an analysis that speaks of Old World symbols and New World realities, of Canadian experiences devalued and absorbed by British myths, Conway argues that constitutional monarchy is so out of touch with Canadian life that 'it is erroneous even to describe Canada as a constitutional monarchy.' Some readers might disagree with his interpretation of the way the Canadian monarchy works - or does not work - but the larger point Conway makes, about 'the failure to be concerned with the symbolic in politics/ is less easy to dismiss. He goes further and, quoting Northrop Frye, talks about the constrictions 'borrowed symbols' generally impose on imagination. Only where Canadians can break free from the representational, in painting and especially in abstract painting, does he say they have established a reputation. Whether treated as alien or fraternal sym-

i8 Part One bol, the monarchy (British monarchy) has stunted imagination and discouraged initiative. Thus if republicanism is an elusive term to define, monarchy as it exists in Canada is scarcely less so. Convergence in practice of what are assumed to be opposites in theory complicates the analysis of the republican option. It raises a doubt whether Canadians are in a position to recognize a choice if it is presented to them. And does it matter? Those who live in constitutional monarchies - but not in republics - sometimes say that between the two there may be a distinction but no difference. Hear a nineteenth-century example of this sentiment: 'England is, in heart, republican, because it has asserted ... the principle that the public good is the sole standard and personal fitness the real criterion of civil power.'39 Or, closer to home: 'A hereditary King with the checks and restraints that hedge him about under the modernized Constitution, is the very best sort of a President that our veiled republic can possibly have.'40 And, most recently: The Constitution Act also made of Canada a republic in all but name ... [since] the Crown in Canada now exists by the sufferance of the Canadian legislatures [of section 41].'41 In each of these opinions, either the public interest mediated through the legislature or the Crown made subject to the legislature is deemed a sufficient condition for a republican claimant. Whether the perspective is from above, with the Crown as symbol, or from below, with the dignified head of state subject to its efficient executive, the conclusion is the same: in spite of appearances, constitutional monarchy is popular government, and since a republic is government based on popular will, constitutional monarchies are republics under another name. The equation is false in fact and misleading in conclusion. It is not accurate to say, as the authors of the last of the quotations above do, that 'the sovereignty of the Crown is a legal fiction,' unless the model of Crown sovereignty implied is a Tudor monarchy, and even that benchmark was deemed by a parliamentary committee in 1984 to have been met. The committee equated the executive power conferred by the former Petroleum Administration Act of 1982 to that held by Tudor sovereigns.'42 These descriptions of monarchical government are too formalistic and, as a consequence, unsophisticated, to be useful. Having moved from definitions of monarchy and republic that rely upon the presence or absence of a king, the standard of reckoning has now become acknowledgment of the public, although even here the acknowledgment is indirect. So far there is no suggestion that the public

Why Is There No Republicanism in Canada? 19 be brought in to decision making directly, as, for instance, through a referendum. Yet to revert to the Australian case once more, it is exactly such forms of direct democracy that distinguish that country from others that use the British or Westminster system of parliamentary government. In light of this feature of Australian politics and the previous discussion of the different options of republican government available, it is revealing that the proposals advanced by the Keating government would have had a minimum effect on the existing arrangement of power, except where they would have reinforced the power already concentrated in the hands of the political executive. The overriding objective was to remove all references to the Queen and the governor general (abolition of the monarchy in the states is a separate matter, which will require constitutional action by the individual states) and to replace them as head of state with a president selected either directly, by popular election or by the prime minister (that is, analogous to the selection of the governor general today) or, indirectly, through an electoral college the members of which would be limited to the Commonwealth parliament or be drawn from different constituencies, such as Parliament and the states. In fact, the Labor government's choice was to use a joint sitting of the two houses. The determining factor in that choice, the prime minister said when announcing his government's strategy to the House of Representatives, was to occasion minimal disruption to the existing practices and arrangements of government. By contrast, an example of a reform with the potential for maximum disruption would be the popular election of the president since, as the prime minister also said, that might diminish the authority of 'the repositories of the diffuse power of Australian democracy.' The Keating government opted for an Australian republic no more committed to classical republican values than the current monarchical government. Suspicion followed that the transformation would be one without substance. For more than one critic the scheme was 'a fraud.' 43 In fact, other commentators went further and said that it constituted a seizure of power by the executive, since the Crown's prerogative powers - all those powers inherent in the Crown (for example, the monopoly of appointments, finances, and foreign relations) and exercisable on advice of the political executive or cabinet - would now come fully and finally into the hands of cabinet and, more particularly, the prime minister. As opposed to American-style republicanism, which might more descriptively be called separation-of-institutions republicanism, Austra-

2O Part One lian or parliamentary republicanism was intended to keep reform within the confines of Parliament. Moreover, some opponents professed to see republicanism as one step in a larger '"reform" platform ... [which] includes abolition of the states, abolition or significant curbing of the Senate and an easier method of changing the constitution.'44 From this perspective, the respective meanings of republic and monarchy have been turned on their head, with the republican advocates now centralists and the loyalists to monarchy now proponents of divided and separated powers. North American Setting From what has been said already, it is obvious that the conceptual blurring of monarchy and republic is not a North American problem only. It just appears that way because the scale of the contrast is so great: on one side of the forty-ninth parallel the world's largest constitutional monarchy, on the other its most famous republic. Distinctions between the two are further clouded by the fact that, notwithstanding different constitutional arrangements, both countries operate as federal systems. If Australia's occupancy of one continent is the most notable feature of its existence, then Canada's sharing of another one with the world's most powerful country must be accorded equal primacy. This is a large claim and requires substantiation; others might argue (favourably or not) that Canada's defining feature lies in its FrenchEnglish dualism. To be sure, in its constitutional recognition of more than one linguistic and legal regime Canada is once again unique among countries of the Western hemisphere. Within the country some critics see costs attached to this uniqueness, beginning with the failure of Canadians to do anything but fight over the consequences of the conquest, 'the only real event in our history.'45 These are debatable propositions but they are not unrelated. The details of the relationship will be explored in the chapter on federalism; here it is enough to assert only that Canadian dualism, either as reflected in the federal government's bilingualism policy or, by contrast, as a consequence of the juxtaposition of Quebec and other provincial language laws, is the product of monarchical government in a continent where republican rhetoric prevails. On the one hand, the official unilingualism of the United States ('see what happened to the French in Louisiana!') is invoked as a cautionary tale to would-be separatists who might trade Canada's practice of elite accommodation for a continental open market. But, on the other hand,

Why Is There No Republicanism in Canada? 21 American-republican values inform the debate about recognition of French-speaking Canadians, in or outside of Quebec. As will become clear in the discussion of republican theory and values, arguments advanced in Canada on behalf of respect for language rights show, intentionally or otherwise, republican roots. Consider the following comments by Raymond Breton: Individuals expect to recognize themselves in public institutions. They expect a certain degree of consistency between their private identities and the symbolic contents upheld by public authorities, which are embedded in the societal institutions and celebrated in public events ... They expect a concordance between their own and the public way of life or cultural style ... Concordance is also important in the case of language. Members of the society tend to expect a certain degree of congruence between the public language and their own linguistic competence and style. Indeed, in a powerful way, the language used in public affairs and institutions signifies to individuals and groups 'that the society is indeed their society'; the institutions, their institutions. Language is perhaps the most effective symbolic medium for assuring a mutual reflection of the public world of institutions and the private world of individuals. 46

French-speaking Canadians are not alone in experiencing a dysfunction between the public and private worlds they inhabit. The tension may be greater where the language used is different, but even where it is the same, the public-private distinction can be important. This is an argument Bruce Hodgins has advanced, and it is one of some significance in the present context of Canada, republicanism, and the North American setting. There is, he says, a public tradition in Canada, which is English, and private traditions, which are not English.47 This aphorism is worthy of examination in another context. The first part of the description Hodgins offers, about the public tradition, is stock Canadian history: the antidemocratic feelings of the Fathers of Confederation, echoing similar British sentiment, is the most obvious example that could be cited. It is also one to which there are notable exceptions, among them a tradition of English progressive thought which held, along with Lord Byron, that 'there is nothing left for Mankind but a Republic,' and that republic was the United States.48 The second part, which suggests the existence of (many) private traditions, is less familiar and less easy to document. The reason for the contrast is known to any-

22 Part One one familiar with historical preservation generally: the official and the established survive because they are durable and protected; the individual and the private disappear because they are personal and unprotected. History becomes a record of big not little traditions, of the exceptional rather than the ordinary. A different cast to this question is given by John Gillis, an American historian, who uses the terms 'elite' and 'popular' instead of 'public' and 'private.' He says that elite memory attempts 'to create a consecutive account of all that ha[s] happened from a particular point in the past': popular memory, by contrast, makes 'no effort to fill in all the blanks.'49 Gillis goes so far as to discuss something he calls elite time, which is national and dominant, as opposed to popular time, which is local and episodic. Nonetheless, Gillis and Hodgins are talking about the same thing, and what is popular in one case but private in the other can be treated as synonymous, since in either instance the challenge is to the public or elite English tradition of Canada. This point is too seldom made. Instead, Canada's reputedly conservative traditions of public ownership and state sponsorship are invoked to distinguish 'this side of the line' from the other. Ignored in this quest to be different is the com mon North American experience, part of which is the result of a shared demographic base. In 1940 Marcus Lee Hansen documented the population flows which, for over three hundred years, crossed and recrossed the Canadian and American boundary from the Maritimes to the Prairie provinces.50 This work was quickly followed by a statistical interpretation of the same movements, by R.H. Coats, then Dominion Statistician, and M.C. MacLean, which underlined the remarkable loss of Canadian people at the same time the country's population grew: '[I]n the eighties, for every thousand that Canada added to the native-born at home, there were sent 717 to the Canadian-born in the United States! Even in the nineteen-twenties, there were added 223 to the Canadians of the United States for every additional 1000 in the census at home ... in spite of 300,000 "returned Canadians" in the immigration figures of 1926-31.'51 The work of Coats and MacLean offers one possible answer to the question 'why is there no republicanism in Canada?' The discontented could, and did, leave. The cause of their discontent need not be political - it could as easily be economic - but unlike those who had immigrated to Australia, the settlers who came to Canada (and their descendants) had another option - to move on to the United States. For most of the nineteenth century the border presented no barrier to movement. Irish

Why Is There No Republicanism in Canada? 23 immigrants, who brought to Australia 'a binding antipathy towards their English oppressors' and became 'the antipodean voice' of republican sentiment, could escape their British North American environment by 'slip[ping] from Canada to the United States.'52 It is doubtful whether most settlers coming to North America discerned or cared about the continent's philosophical complexion - the United States, a liberal fragment of seventeenth-century England, and Canada, a less monolithic conservative fragment. What mattered by the 18305, says Hobsbawn, was that both had become the poor European's dream country, but the United States especially, because 'there's no king there.'53 Forty years earlier John Graves Simcoe, then lieutenantgovernor of Upper Canada, had acknowledged the advantage being a republic conferred on the neighbour next door: 'It is the policy of the United States to call themselves solely Americans, not only with the view to melt down in that general name every part of their Confederation, but to enforce when time shall suit, their principle, "that all Colonies connected with European Governments, or depending upon them are foreign, and invaders, and that they themselves only are the Natives." '54 But cheap, available land devalued the premium placed on republicanism, and Canada was much favoured in this regard - not as much as the United States, but favoured nonetheless. The massive amount of land; the common patterns of owner-operated farms (cleared by the original settlers) in the East and, later, the much larger Prairie homesteads broken and farmed by resident owners; the similarity in crops sown in Canada and the heavily populated northern American states; and the identical farm machinery required in the rigorous continental climate that prevailed on both sides of the border combined to create the base for a set of private traditions that were distinctively North American rather than monarchical or republican in character. What was missing in North America, and what Hobsbawn's peasants found so attractive, was less the absence of kingship than the absence of aristocracy and feudal land tenure. Even Canada, a colony of an empire, had no hereditary land ownership, although in the first decades of the nineteenth century the law of primogeniture, clergy reserves, large land companies, and clientelistic relationships between patrons and those who depended upon them created a situation reminiscent of Old World tensions. By mid-century, however, there was no reason to dissent from the Colonial Office's epigrammatic comment apropos Canada, that 'where fortunes are ephemeral, distinctions cannot be hereditary.'55 The equalizing impact of a common form of land tenure encouraged

24 Part One the migration of Americans and Canadians across the international boundary. To be sure more of it existed in the United States than Canada: except for the Appalachian region, one could travel from the Hudson River docks in New York City (or from Boston or Charleston) out to the Great American Plain for 2,000 miles through fertile country. Still, all along the southern waterways that embraced the Laurentian Shield and then again to its west, bountiful stretches of arable country waited to be cleared and planted. This uninterrupted prospect drew Americans across the Niagara Peninsula into Upper Canada and Upper Canadians across the Detroit and St Clair rivers to Michigan and farther west. A century after the migration had begun Coats and MacLean noted that in 1930 Michigan was, after Massachusetts, still the second largest 'Canadian' state. It is no abuse of metaphor to say that at the beginning of the nineteenth century North America represented a garden to be exploited by millions of immigrant farmers, an enterprise it must be admitted that made slight allowance for the interests of the Native peoples encountered along the way. Nowhere else did the occupation of a continent occur as it did in North America; certainly not Australia, whose topography and climate outside of areas like the Barossa Valley of South Australia discouraged small farm cultivation. For the purpose of this book, the common settlement pattern of the people of Canada and the United States and the contrast it represented to the history of Australian settlement is highly important. For the North American experience blurred the significance (in Hodgins's words) of the public traditions of monarchy and republicanism. Who owned the land before it passed into private hands - the Crown or the public domain - mattered only for a moment. Once in the settler's hands, it fell subject to myriad private traditions that were uniquely North American (and not Canadian or American) in origin. The common experience of agriculture and farming touched the lives of the vast majority of those who lived in North America well into the twentieth century: only in the 1951 census did a majority of Canada's provinces register a smaller rural than urban population. What Richard Hofstadter said of Americans in this century was equally true of Canadians: The United States was born in the country and has moved to the city.'56 Canada and the United States were slower to urbanize than Australia, and when they did, in neither were the cities so few or so dominant as in Australia. Demography has determined the formation and communication of republican ideas. Australia has six major cities, each the capital of a

Why Is There No Republicanism in Canada? 25 state. No other cities in Australia rival them because no other cities are ports. (Canberra is no exception; it is a latecomer, without a hinterland, and despite a five-fold increase in population in the last thirty years still has fewer than 300,000 people.) In 1921, over 50 per cent of the population of Victoria and South Australia lived in Melbourne and Adelaide, while over 40 per cent of the state populations of New South Wales and Western Australia lived in Sydney and Perth, respectively. In 1986 there was still only one Canadian province (Manitoba) where over 50 per cent of the population lived in the provincial capital. Canada's largest metropolitan area, Toronto, comprised only 37.6 per cent of Ontario's (1986) population. The state capitals of Australia dwarf their states. They were the colonial capitals before the creation of the Commonwealth in 1901, and it was from their tidewater locations that settlement, administration, and communication fanned out over each colony's sparsely populated hinterland. Local autonomy in policing or education, or in most community areas that North Americans think important, is weak or non-existent in Australia, the consequences of a metropolitan acquisitiveness unrivalled in Canada or the United States and of convict settlement origins that made bureaucracy a pre-eminent feature of government.57 In four of Canada's provinces (British Columbia, Saskatchewan, Quebec, and New Brunswick) the capital is not the largest city, while in Alberta and Ontario a second city (or cities) acts to balance a single urban monopoly. This demographic contrast between Canada and Australia (leaving aside the equally distinctive linguistic division of Canada) enters into the subject of republicanism in the following way. Republicanism in Australia is not just an urban matter; it is a 'capital' matter. In his survey of recent polls Murray Goot has written that 'on this issue Australians who live beyond the capital cities are not just believed to be better disposed to the monarchy, they are better disposed; polled differences in recent polls have ranged from 3 to 13 percentage points ... In absolute terms the effect is not large. In an evenly balanced contest, however, it could be decisive.'58 Republicanism in North America has never been a metropolitan phenomenon alone, and it remains to be shown whether it has even been dominantly urban in locale. While examples of republican expression drawn from Canadian experience are scarce - William Lyon Mackenzie was as urban as an Upper Canadian could be in the 18305 - radical thought has as often emanated from the periphery as it has from the centre.59 This theme will be explored later, although it is clear from the

26 Part One foregoing summary that agrarian republicanism, which is so much a part of the founding ideal of the United States, has no place in Australian myth. Indeed, one could go further and say that the North American conception of the independent and self-made man of the soil, of the intelligent and educated farmer, was unique to North America. William Cobbett, who lived in the United States between 1817 and 1819, marvelled that 'there [were] very few really ignorant Americans of native growth. Every farmer is more or less a reader/60 This was not to say that there were no intelligent or educated persons living in rural Australia, but compared with North America, the Australian numbers were small. By contrast, on the other side of the Pacific the rural population was immense, and because of the high level of literacy ideas percolated up, filtered down, and spread out. Attitudes to governing and experiments in direct democracy, as well as knowledge of farming, knew no boundaries, in part because the people who held them moved across North America at will. Mobility itself, so much a part of North American experience, although again perhaps more pronounced in the United States than in Canada, became identified with freedom and, for Americans at least, the building of the republic. Canadians outside the public tradition could be forgiven for forgetting their distinctive monarchical origins. Sometimes it was not a matter of poor memory but of deliberate desire to discount symbols that seemed inappropriate to a new land. In her novel The Imperialist, which explored the skein of sentiment about Empire at the turn of the century, Sara Jeanette Duncan proved herself sensitive to the distinction: '[H]ere were no picturesque contacts of Royalty and the people, no pageantry, no blazonry of the past, nothing to lift the heart but an occasional telegram from the monarch expressing, upon an event of public importance, a suitable emotion.'61 Imperialism and Nationalism In the 19605 and 19705, John Diefenbaker regularly accused the Liberal governments of the day of undermining the monarchy in Canada through a campaign by stealth. Less frequent use of the Canadian coat of arms, with its royal elements, and the abandonment of adjectives like 'royal' and 'Dominion' in favour of 'federal' or no adjective at all (Statistics Canada) led, he charged, to the gradual stripping of monarchy, one symbol after another until nothing remained but the memory. Out of the

Why Is There No Republicanism in Canada? 27 resulting vacuum, he inferred, would appear, as if by autogeny, a Canadian republic. Diefenbaker was in a minority but not alone in objecting to the new usages then, nor is the perceived manipulation of monarchical forms by Liberals a thing of the past: 'Reform outraged by change in Canada's coat of arms,' blazed a Globe and Mail headline in December 1995, while a month later the same newspaper reported 'aroused ... emotions from coast to coast' at the suggestion by a new citizenship minister that Canada needed a new oath of allegiance.62 Acrimonious though such exchanges might be, they attract only momentary publicity. The great flag debate of 1964-5 was another matter: prolonged, intense, and emotional comment from all sides in Parliament and around the country continued for months. Yet decades later it is uncertain what conclusions can be drawn about the effect these events had on Canadian identity or on monarchical sentiment. Doubtless symbols possess a vitality, but the nature of their influence is unclear and, in any case, is not the issue here. In the context of this discussion, the relevant concern is instead why Canadian governments have pressed ahead with policies - which, for simplicity's sake, may be labelled as nationalist - and what considerations determined which policies should be followed. Pursuing answers to these questions will provide another explanation for the absence of republicanism in Canada, and for this reason: it will demonstrate that symbolic or minimalist republicanism of the kind the Australian government opted to examine in the 19905 had no occasion to take root in Canada. On the contrary, Canadian conditions made that option unnecessary, undesirable, and, in all likelihood, impossible to achieve had there been a disposition at any time to proceed in that direction. In its place arose a sophisticated and malleable conception of Canadian nationalism that met several pressing needs. It accommodated Empire-Commonwealth relations; it made sharing a continent with the behemoth next door less threatening and even beneficial; and it appeared to confirm the view Canadians held of themselves by at least the end of the First World War. Harold Innis once said that Canadian nationalism, in the form of territorial expansion, on the one hand, and protectionist protests in the form of, say, the defeat of reciprocity in 1911 on the other, was actually Canadian imperialism under another name. Defensive to be sure, since it was created in reaction to 'the pressure from American imperialism/ but imperialism nonetheless.63 While not everyone would use Innis's terminology, the reminder that Canada

28 Part One became a continental country through the incorporation of territory is useful. It suggests again parallels between Canada and the United States and differences between these two countries and Australia, whose federal government followed rather than led national unification. But Innis is more important still, since his comment underscores the deliberation and calculation that lay at the root of Canadian nationalist policies. The story of Canada's winning of international recognition has been told before, with the Imperial War Cabinet in London, the peace treaty at Paris, the League of Nations, and so on cited as milestones along the way. What needs emphasis is that on each of these occasions Canada was anything but a passive participant. Robert Borden, in 1919, during the yet-unresolved debate over Canada's representation at the Peace Conference, gave notice that 'it [was] about time to alter [the perception that Canada was not a nation]'; Mackenzie King, throughout the 19205, stressed Canada's 'detachment and separateness' in imperial relations - to such an extent as to earn Canada the reputation among Australian leaders of being one of 'the radical dominions,' along with South Africa and the Irish Free State.64 Even R.B. Bennett, no enthusiast of the cause of national self-definition, accepted as inevitable the Statute of Westminster in 1931, by which the British Parliament in effect abnegated its legislative power over old dominions like Canada and Australia. Except - and there could hardly be a greater difference between the two dominions - because of pressure from the government at Canberra, the statute was phrased so as not to apply to Australia until its federal Parliament adopted it. That did not happen until 1942, and even then Westminster could still legislate with effect on the states, a paramountcy that ended only in 1986. It has been said that until after the Second World War, by which time Great Britain's incapacity to defend Australia had been proven (a reference republicans never fail to make), there existed an 'amiable confusion of loyalty to the crown with loyalty to the United Kingdom."65 Such was not the case in Canada, and those, like Arthur Meighen, who forgot the difference paid the political price.66 But there is more to nationalist sentiment than a persistent assertion of Canada's distinctiveness. If that were all, then the argument that emanated from Ottawa would be no different from that heard recently in Canberra - just older. Yet they are different, both in genesis and content. Until the Second World War Canada's nationalist concerns about identity and recognition were played out within the imperial forum. Usually the issue arose directly: was Canada to be treated as an inde-

Why Is There No Republicanism in Canada? 29 pendent entity in its relations with Great Britain? Sometimes it appeared by inference, in the confusion others experienced in determining whether Great Britain 'spoke for' Canada. Not only was the Empire the forum, it was the substance as well. Canada's claim to distinctiveness lay, she would argue, in her own imperial history. She was the country of Lord Durham and responsible government, the model others should follow. She was the country of two races and languages, the colonial prototype of the imperial cultural mosaic. Perhaps no native-born Canadian would have voiced the ideal in such imperialist terms, but Lord Tweedsmuir (John Buchan), governor general 1934-40, suggested something of this sense of mission: 'I dream of a world-wide brotherhood with a background of a common race and creed, consecrated to the service of peace; Britain enriching the rest out of her culture and traditions, and the spirit of the Dominions like a strong wind freshening the stuffiness of the old lands.'67 Canada, as she liked to see herself, represented the future. And that future, put starkly though not unambiguously, was one of independence. The word was used with increasing frequency in the years leading up to 1939, though often its implication was limited to the field of external matters, particularly Canadian control over foreign policy commitments. Few displayed the candour of Escott Reid, then only thirtythree years of age, who pushed independence to its ultimate conclusion: The psychological colonialism of the Canadian can only be burnt out of his system if Canada becomes an independent country. But the acquisition of the right is a step in the direction of becoming "an independent sovereign state in the full sense of the status as accepted by the world," and the more steps we take in that direction the better. The steps can, in the usual manner, be camouflaged as final steps, as constitutional steps, and when the final illegal act occurs it will not appear very revolutionary. Mr. de Valera can serve as our political mentor.'68 In the light of Canadian political tradition, Reid's sentiment was radical indeed and it would be false to suggest it was representative, except in this sense: independence in whatever context the term was used was the goal of Canadian nationalists in and out of government. Here, to harken back to the distinction made earlier, public and private traditions overlapped to a significant degree. New groups (Native Sons of Canada), new organs of opinion that espoused 'a more demanding patriotism' (Canadian Forum), and revitalized organizations like the Methodist Church, with its 'evangelical nationalism' gave middle-class, Protestant, and English-speaking support to nationalist policies formu-

30 Part One lated by their own kind.69 Two points need to be noted about this alignment of allegiance: there are significant omissions in the representation of public opinion (most notably that of French Canadians) and individuals who shared the foregoing characteristics were not to a man, or woman, necessarily nationalists. Separateness would go too far if it meant the links with Great Britain were actually severed. For it was one of Canada's major resources that as neighbour of the United States but senior dominion she had a special role to play in the North Atlantic world 'as the link which binds the United States to the British Empire.'70 Only Canada could play this role and it would be lost to her if she was not a member of the Empire. This explains the paradox that, as Canada slowly matured on the international stage, she thought not about separating from the Empire but about using her prestige to gain greater weight and strength within it and its Commonwealth successor. It was not predestined that Canada should choose to act in this fashion. Two factors were at work: one, examined in some detail already, was linked to her determination to be independent and to use the world of external affairs to secure that status; the other relates to the nature of the Empire-Commonwealth. Several decades ago Michel Brunet drew the distinction between un empire familial and un empire colonial. It was a contrast of great importance for French Canadians, he said, but one they had repeatedly misunderstood because they had 'toujours commis 1'erreur d'interpreter cette evolution des relations interimperiales comme un acheminement vers la dislocation de 1'Empire. Les Canadiens ont eu le tort de croire que les Canadians pensaient et reagissaient comme eux.'71 Important for French Canadians perhaps, but the distinction has wider relevance, too. Un empire familial, which is what the relationship between Great Britain, Canada, and Australia was, will have a different impact on constitutional perspectives than un empire colonial, particularly when it comes to suggestions for radical change. In fact, attempts have been made to reconcile constitutional change coming from the two kinds of 'empires/ as, for example, the innovation to keep India within the Commonwealth once she became a republic in 1950. In announcing that new arrangement, India's then prime minister, Jawaharlal Nehru, both justified and defended his government's actions. While India might be independent, he said, she could not 'remain completely isolated/ and the Commonwealth was an ideal association since it demanded 'no commitments.' At the same time, acceptance of the British sovereign as 'symbol of that association' in no way compromised the

Why Is There No Republicanism in Canada? 31 new republic's integrity because, as a republic, India 'goes outside the Crown area completely."72 The distinctions between king, Crown, and republic, which Nehru admitted some persons might see as 'small/ assume added meaning in light of the previous discussion. Arguably, the abstract Commonwealth concept and the minimalist terms of its membership seem little enough, too, in the real world of politics, except that for a country like Ireland, which became a republic in 1949, even they proved too much. The taoiseach, or prime minister, J.A. Costello, left no doubt that in this instance the symbol of republicanism was absolute: '[The Republic of Ireland Act, 1948] will end, and end forever, in a simple, clear and unequivocal way this country's long and tragic association with the institution of the British Crown and will make it manifest beyond equivocation or subtlety that the national and international status of this country is that of an independent republic.'73 The literature confirms that it was the sense of British occupation and oppression in India and Ireland that drove these countries to republicanism. In each the journey leading to this last constitutional reform had been long, violent, and, in Ireland's case especially, had wound through uncharted territory of new and sometimes fantastic proposals for governmental structures and power-sharing.74 As opposed to the inventions associated with these 'near-dominions,' Canada was orthodoxy itself. Parliamentary federalism she could claim as her contribution to the practice of government, but in the realm of traditional constitutional thought and values no one tended the flame more faithfully. Here, again, Canada stood apart from Australia, a country with a history of electoral innovation going back to colonial times and greater sensibility to republican values reflected through elected upper chambers and constitutional referenda. Canada's traditionalism in constitutional matters did not mean that she herself was free from deviation. As a later chapter will demonstrate, among the numerous peculiarities of the Senate of Canada is a structure unknown at any time to the British constitution. The 'Westminster model/ which is celebrated around the world, seems in Canada never to have included a blueprint for an upper chamber even approximating the House of Lords. What did survive the crossing and take root was the belief in the tradition of government, in the maturing of forms and procedures, in what Kenneth McNaught called 'the legitimating function of continuity' itself.7:i None of these values is calculated to encourage hasty or ill-considered judgment. Colony to nation, dependence to independence, mediator, interpreter, fixer - the theme is the same whether

32 Part One in popular historical accounts, university textbooks, or after-dinner speeches. It became the reflex interpretation of themselves Canadians gave to the world. A minor but telling illustration of this involuntary response is to be found in the files of speeches given by Arnold Smith, subsequently first secretary general of the Commonwealth but in the 19505 and early 19605 Canadian ambassador, first to the United Arab Republic and then to the USSR. In addition to the typed addresses, the files include handwritten marginal notes and jottings on scraps of paper. These last may summarize a speech preserved in the file for posterity or record impromptu remarks that never took more elaborate form. In any case, in cryptic phrases, the same tale reappears: 'Independence achieved by different means [from Americans]'; 'Bridge between continents [and/or] races'; 'stretched the umbilical cord, pulled it, shaped it out of all recognition [as Canada matured from] Empire to Commonwealth."76 Smith, like Escott Reid, was a diplomat. But they were only two individuals in a department with Lester Pearson at its head that attracted public attention and fostered pride in Canada's role abroad. In the postwar world there was no doubt, among those at home or overseas, that Canada was a leader, a 'middle power/ but familially related to the very powerful. It is sometimes forgotten that in these attitudes and in this role, Canada was unique among nations of the Western hemisphere. The historian and member of the Massey Commission (Royal Commission on National Development in the Arts, Letters and Sciences), Hilda Neatby, made this point in a letter to Vincent Massey. She attributed Canada's 'habit of natural association with countries in every part of the world' to her maturing in association with Great Britain, who, Neatby observed, drew no distinction between the world's interest and her own.77 Add to this internationalist upbringing the presence of the United States next door, and Canada could not afford to think in isolationist or protectionist terms. Yet if history and geography conspired to make Canada see herself as part of the world, their effect was reversed for Australia; there a sense of remoteness from her cultural roots half-aworld away and vulnerability to expansion by foreign powers long reinforced a sense of dependency. The picture of stability and purpose retailed by Canadian diplomats was not for foreign consumption alone. In the post-war era, the federal government set about for the first time promoting nationalist policies and projects at home, in some cases acting on recommendations of bodies like the Massey Commission, in others taking initiatives on its own.

Why Is There No Republicanism in Canada? 33 The debate and correspondence of public figures of the day leave no doubt that in their minds the ingredients of Canada's international standing determinedly won over several decades could be replicated in the construction of an internal identity just as premeditatedly achieved. Listen to the first speech by Louis St. Laurent on the subject of Canadian citizenship after the Canadian Citizenship Act of 1946 had come into effect. The emphasis is on 'a constructive national consciousness [thatl has to be built.' The enterprise, he made clear, was 'but the latest step in a continuous and progressive series of enactments [elsewhere he used the word 'texts'] which has brought us from our early beginnings, with first small French and then British colonies hugging the shores of the St. Lawrence to a strong and energetic sovereign state, an influential member of the British Commonwealth of Nations and of the great international family of all peace-loving nations.'78 As it turned out, expectations that a seamless external personality could be transubstantiated into an equally complete and coherent internal identity proved to be misplaced. The Quiet Revolution and three decades of constitutional introspection have yet to produce the harmony many Canadians believe must exist. Significantly, and despite the failure to achieve internal accord, Canada's external personality remains intact and, except for occasional lapses in Paris, resistant to challenge. To recapitulate: the absence of republicanism in Canada is explained at least in part by a nationalism that was too strong rather than too weak. From the First World War on, Canada sought independence, but within and not outside the Empire-Commonwealth. While it is true that there were constitutional barriers to effecting secession until after the Second World War (witness the late departure of a belligerent Ireland), Canada would have suffered where it mattered most to her - recognized status - had she been allowed to secede. For her greatest resource was her location alongside the United States, and to exploit that strength in full meant trading on her attachment to Great Britain, however intangible that link might be. Thus separation was not only unnecessary, it was undesirable. This situation lasted only so long as the powers Canada sought to supplicate remained susceptible to influence. After 1945, with Great Britain perceptibly in decline and the United States translated to a superpower, Canada found the old set of relationships changed and not for the good.79 It was then that George Grant's lament for Canada's independence drowned out the hegemonic Liberal belief in a middle way. The ascendancy of the United States and, more particularly, American culture and

34 Part One mores transformed Canada's location on the North American continent from a strength into a weakness. In the future Canada would be American and therefore liberal in her values, or she would be nothing; in other words (that is, in Grant's most famous epigram): The impossibility of conservatism in our era is the impossibility of Canada.'80 Grant's dictum fed a debate already underway: could Canada's economic and cultural integrity survive in the face of worldwide technological and economic change led by the United States? Whether or not one accepted Grant's indictment of liberalism and Liberal government policies or his prophecy that Canada had no future as an independent entity is immaterial to the import of these transformations on the subject at hand - the failure of Canada to develop republican patterns of thought. If for half a century Liberal confidence in creating a recognized independent status for Canada had excluded republican values from its conception, how probable was it that the new fatalism would see a place for them in Canada's future? Whether the geometric image is a point on a line between the age's greatest republic and the century's greatest empire or a corner of the North Atlantic triangle, the degrees of freedom available to Canada to change had contracted in the post-war world. Summary In 1863 D'Arcy McGee described Canada as 'an unripe Republic.' The appellation was not intended to flatter, for McGee feared that after 'a few more seasons' the colony would grow into an 'unbalanced democracy.'81 Here was one more Father of Confederation who denigrated politics in the United States and condemned the broad (but scarcely universal) franchise its constitution provided. His curiously phrased criticism revealed a serious misreading of the United States constitution, however: of all countries, it was the one where institutional balance reigned - to a fault, in the eyes of other Canadian censors. Colonel George T. Denison and his correspondents, of United Empire Loyalist stock and defenders of Empire at its apogee, never tired of ridiculing American politics: 'full of oppositions and deadlocks in every quarter executives, Senates and legislatures in irreconcilable oppositions all over the country.'82 Canadians were more at ease listing what they saw wrong with American-style democracy - corruption, machine politics, low voter turnout - than they were with anatomizing republican government. It was (and is) as if in this matter form had no relationship to function.

Why Is There No Republicanism in Canada? 35 There was, of course, another republican alternative - France - but it was treated as if beyond the constitutional pale. Canadians, including those in Quebec, were united with English-speaking opinion on both sides of the Atlantic in rejecting the French model. It was a proscription with far-reaching effect on domestic political attitudes. In the words of E.P. Thompson, The First [Napoleonic] Empire struck a blow at English Republicanism from which it never fully recovered.'83 Ever after, republicanism was deemed suspect in its motives and sinister in its methods. While Canadians might disapprove of American democracy, they could not ignore the United States. Canada more than shared a continent with her neighbour (in these calculations Mexico did not exist), the fates of the two countries were seen as inextricably intertwined. Francis Parkman memorably recorded the birth of this indelible relationship in his (1884) study of the decline of the French Empire in North America: 'With the triumph of Wolfe on the Heights of Abraham began the history of the United States.'84 The American revolution did not affect the continent's geography, but in politics a cleft appeared, with British North America and the United States separated by distinct constitutional values. To the north, a commitment to tradition and continuity; to the south, a belief in liberty and change. Lord Acton wrote that after 1776 the word 'American' meant 'escape from History.'85 Such was not the case for the word 'Canadian,' which became synonymous with incrementally achieved independence. And that proved possible, even predictable, once responsible government was achieved in the 18405. First, as the Empire waxed, and then as it waned, Canada capitalized on her position as senior dominion. Far from being an obstacle, the EmpireCommonwealth proved useful to Canada in realizing its aspirations for recognition. It was a goal consistently pursued by Liberal and Conservative governments and one sanctioned by a majority of Canadians. There was no room in this constellation of public and private values for republicanism. Nor was there need. In the last four decades of the century internal constitutional debate has preoccupied governments and the interested public. The absence of republican prescriptions and, more particularly, the absence of proposals to abolish the monarchy contrast strongly with what has happened in the same period in Australia. It is a paradox that Canada, the country with severe, even threatening, constitutional strains, and the country committed to constitutional renewal, should express no interest in the question while Australia, the continent that is a country, should move formally so far toward the republican option. Why should the symbol of

36 Part One republicanism matter less to almost any Canadian than it does to a substantial number of Australians? If republicanism is offered to Australians as a means of confirming their independent identity, how can it be that Canadians, who untiringly claim to seek a national identity, see no profit in this option? Could it be that Canadians experience no anxiety about how others see them? And could it be that, in the external world, sharing a continent with the United States has sharpened rather than blurred Canada's image? The great Canadian challenge appears to have been not to tell others who they are but to tell themselves.

2

The Appeal of Republicanism

A choice without an explanation is no choice at all. Neither is there a republican option when the substance of republicanism remains unexplored. Just as door-step purchases of vinyl siding, for example, are covered by a buyer's protection act that demands full disclosure of the terms on offer, so citizens need information about republicanism in order to make an informed decision about its merits. References in the preceding chapter to parliamentary republicanism suggest little of the rich complexity found in the theoretical concept or embedded in the governmental forms derived from that concept. This chapter will trace the genealogy of republicanism, beginning with its classical foundation in Greece and Rome, then examine its development in Western political thought through to the period of modern constitutional government, and, finally, evaluate its contribution to what J.G.A. Pocock calls 'the three British revolutions: 1641, 1688, 1776.' The French Revolution, which Pierre Rosanvallon argues led ultimately to 'the republic of universal suffrage/ is treated as coda to this discussion for reasons outlined below.1 If, as inheritors rather than creators of a political tradition, Canadians are disinclined to think of politics in abstract terms, then an historical excursion of the nature proposed may appear unnecessary as well as unwelcome. What have Polybius, John Milton, or John Adams, among others, to say to citizens of a country that has never demonstrated any sensibility to the subject of their deepest concern? Quite a lot, as it turns out, for the dissection of the republican idea teaches as much about principles of governing applicable to modern democracies as it does about the arrangement of institutional forms. Among the lineaments of the republican concept are the following: 'the rule of law, under a mixed

38 Part One and balanced government, comprising a sovereign people, a deliberative senate and an elected magistracy.'2 While not all of this language is replicated in daily Canadian usage, the composition of government it describes is familiar enough. So, too, are the objects of classical republicanism: justice, liberty, and the common good, although public virtue, the best known of the goals and the one deemed essential to good citizenship, is generally lost to modern understanding. Republicanism is neither irrelevant nor irretrievably lost. It is part of the constitutional lineage of all Western societies, even if in the most famous adherent - the United States - the gap between republican theory and practice is cause for anguish.3 Indeed, a major reason why the republican idea - when carried beyond the minimalist variant as proposed in Australia - seems inaccessible is its identification with the United States and nowhere else. The Washington model is less easy to describe than might be supposed, but after analysing a wide range of possible characteristics, Giovanni Sartori has isolated its cardinal element: 'The defining and central feature of the Washington model is an executive power that subsists in separateness - on its own right as an autonomous body/ 4 Eighteen other countries, all in Latin America except for the Philippines, seek but do not duplicate the success of the American model. Moreover, 'since at least 1967, there have been, in the world, 31 continuous democracies; of these only four (Colombia, Costa Rica, the U.S. and Venezuela) have presidential systems.'5 With a record like this, it is hardly surprising that the United States is not only Canada's republican referent - it is the world's. American exceptionalism distances the republican idea, since uniqueness is hard to imitate. Nor did Canadians see any need to follow the example of their neighbour. Writing of the 18305, Paul Johnson has said that 'the feeling that England was the paradigm of a successful nation, based on a superior constitution, was particularly strong in Restoration France.'6 Canadians shared that belief for another century. Radicals like William Lyon Mackenzie, who, after the Rebellions of 1837-8 had taken refuge in the United States, nonetheless 'conceived a strong revulsion against the face which Jacksonian democracy presented by the 18403.'7 A Patriote like Denis-Benjamin Viger remained throughout his turbulent career 'a fervant [sic] admirer of English parliamentary institutions and of the felicitous balance within them between the three traditional principles of government: the monarchist, the aristocratic, and the democratic.'8 It was a sentiment didactically communicated to the young as well: 'In Canada we have what has been said by enthusiastic observers

The Appeal of Republicanism

39

to be the most perfect constitution ever devised by man. It seems to possess all of the advantages of the noble constitution of the American Republic, yet with few of the latter's defects/ 9 Self-congratulation faltered only after 1960, as the Canadian federation entered a period of prolonged strain, and even then the shadow fell on the federal and not the parliamentary dimension of the country's constitutional structure. Seen through Canadian eyes, the advantages of the United States Senate were confined to the equal representation of states regardless of their population.10 Inundated by American media, Canadians confidently assumed a familiarity with American life, freely passing judgment on an array of subjects, including the cost of elections, the quality of health care, and the impartiality of the courts and the police. It has been argued elsewhere that 'unofficial history' - urban myths writ large, as it were 'finds expression in proverbs, legends and folk-tales.'11 'Popular but unproven' might even be a verdict, since rules of evidence do not apply; instead, constant repetition gives the appearance of truth. For some years a witticism made the Canadian academic rounds: the country, it was said, was heir to three great heritages: British politics, American technology, and French culture. But with a self-depreciation all their own (and not less loved for that), it was also said Canadians had somehow got it wrong, for they had ended up with British technology, American culture, and French politics. The story would be more apposite if the punch line had awarded Canada American politics. Still, the emphasis is clear: in the best of all possible worlds no one would choose anything but the British political tradition. At the end of the day that may even be the considered judgment, but until it is considered, the disposition to depreciate American politics and with it the republican principle requires review, beginning with the idea itself. The Idea In the beginning was classical republicanism, first in the Greek city states and then in the Roman republic. What made that republicanism classical was not the matter of its time and place but rather the value or commitment it pursued. Then and only then did 'the life of political involvement serv[el as the noblest ideal for humankind.'12 Here Aristotle's ideal of active citizenship flourished; here public virtue ruled; here community, rather than a set of formal institutions, existed. Such is the theme of inaugural Political Science 101 lectures.

4O Part One But whence came this goodness - from the citizen or the constitution? It is crucial for the purposes of this study to emphasize that the answer lay not in nature but in nurture. Through the right ordering of the institutions of the state, be it the polis then or today's transcontinental state, good citizenship emerges. Among the activities on which classical republicanism placed a premium was constitutional engineering. By Aristotle's time it was already understood that states came in one of three forms: monarchy, aristocracy, or democracy. It was also agreed that each of the three might degenerate into its opposite form: tyranny, oligarchy, or mob rule. In fact, degeneration was assumed to be a certainty unless elements of the three forms were mixed so as to check the undesirable influences latent in each: 'It was the Greek historian Polybius who, by bringing into conjunction the three ideas of divided power, balance, and permanence in government, and applying these principles specifically to the mixture of monarchy, aristocracy, and democracy, was mainly responsible for giving the theory of mixed government its characteristic form.'13 Good citizenship was the product of mixed government, despotism its absence. That much was simple, and being so suggests the source of Catharine Macaulay's label for republicanism, 'rigid simplicity.'14 But of the parts, there is more to say. First, the monarchical element need 'not be represented by kingship'; for a period Rome had two consuls elected for only a year at a time. Inherent in this innovation was the idea that rotation or short terms for the executive would restrict the accumulation of power associated with lifetime occupants of offices. Stable not stolid government was what was wanted, and Cicero, the most famous Roman propagator of mixed government, would not have approved of a system like Canada's, where seven prime ministers governed a total of one hundred of the first 125 years of Confederation. Nor would he have approved of Canada's bicameral Parliament. Bicameralism was as fundamental to the balance of mixed government as was the executive. The function of the two chambers - deliberation in the upper and approval or rejection by the lower - he considered essential, and yet never in Canadian history, after 1867 with the Senate or before with the colonial legislative councils, has such a division of function been practised. The attraction of classical republicanism to later students of politics lies in the immediacy, even intimacy, of public affairs it invokes. Faceto-face democracy in a small forum offers escape from the modern concerns about accountability and representation. Politicians keeping

The Appeal of Republicanism 41 promises should not be a problem. And yet it can be, for as Harry Evans reminds his readers: The essence of republican government is that elected officials act as the agents or trustees of the whole people/15 The scale may be small and the focus less diffuse than today's politics, but the relationship is nonetheless recognizably political. Where there is a difference - and it arises later in this chapter in a discussion of the United States constitution (as well as being the subject of Chapter 4) - is representation. For there is a striking contrast between classical and later concepts of representation: in the former the parts of the constitution were perceived not to 'emphasise the representation of social forces, but insisted almost exclusively on the notion of equilibrium among institutions.'16 The complaint so frequently heard today in Canada that regions, classes, and minorities go 'unrepresented' had no meaning. There are obvious reasons why this would be so - small and homogeneous polities being a chief explanation. But among the less obvious was a perception of society and its relationship to politics that was moulded by republican ideas. And that perception was not partial to particularisms. Similarly, where citizenship - what Bruce Ackerman calls 'a public-regarding polities' - governs, concepts of rights and of a higher or constitutional law that might conflict with positive law assumes less meaning.17 Here is the source for the modern claim that rights and the public good co-exist in tension or, to put it more baldly, that each is enemy of the other. It is thus understandable that the foremost republic with the most famous bill of rights exerts a contradictory fascination on those seeking to promote social cohesion on the one hand and individual freedom on the other. The idea of mixed government originates with the ancients and continues into the present day. Its line of descent feeds Western notions of constitutionalism, most crucially the concept of limited power, and more generally, such popular beliefs as no individual should act as judge and jury in his or her own case and all persons are equal before the law. But, as M.J.C. Vile has convincingly argued, the theory of mixed government is not the whole theory of limited government. In his book, Constitutionalism and the Separation of Powers, Vile distinguishes between 'the representative organs of mixed government and ... the functionally divided agencies of the separation of powers.'18 In the first instance it was through mixing monarchy, aristocracy, and democracy that government in the interest of any one of these elements was restrained. In the second instance, that object was achieved through the assignment of particular functions to particular agencies. Thus in the first harmony or

42 Part One cooperation was produced as an effect, while in the second it served as a precondition for action. The concept of the separation of powers, or agencies, or functions is the rock on which the theory of the balanced constitution rests. That theory reaches its apotheosis in the constitution adopted at Philadelphia in 1787, but it is not the property or even the invention of the United States. On the contrary, as Vile argues, it was very much the prevailing theory of British politics after the Glorious Revolution of 1688 and, more to the point of this book, as the next chapter demonstrates, the model for British North American politics for some decades after the introduction of representative government in the eighteenth century. Montesquieu elevated the balanced constitution and, especially, the doctrine of the separation of powers into his own theory for English constitutional success. Vile notes, however, that the emphasis Montesquieu places on these matters is different from 'English thinkers on the balanced constitution' in this important respect: while he saw the separation of powers in terms of the theory of mixed government - that is, the 'King, Lords, and Commons' - his English counterparts stressed 'the over-all balance of the "powers" of government maintained by the share each of them had in the legislative function.'19 The origins of the theory of mixed government lie in republican Greece and Rome, and as the theory travels north to city states like Florence and to Venice ('the most serene republic') it continues to effuse republican values and sentiments. These, according to Z.S. Fink, are 'strewn through Machiavelli's Discourses.20 Among them was the belief in engineering a state and, more than that, doing it 'all at once by a single great legislator/21 For states, large and small, where stability was not a usual condition, acts of statecraft exert an appeal that is both practical as well as theoretical. But in a realm like England, whose monarchs by Machiavelli's day had succeeded one another without a break for four centuries (or at the end of the present century, when the dynasty is now over 900 years old) such deliberate action is less easy to conceive. Even more, the concept of a lawgiver - of a finite and limited person or institution - does not cohere with English (or Canadian or Australian) constitutional theory of the King- or Queen-in-Parliament. Thus when the republican idea of mixed government crosses the channel, it faces new challenges, beginning with how to deconstruct the parts of Parliament. What is the relative influence of each; how is that influence made manifest? For the sovereign there are more immediate concerns: to speak of a mixed constitution is to infer that boundaries exist which, in turn, imply limits on the

The Appeal of Republicanism 43 Crown's discretionary or prerogative power. Again, to speak of statecraft is to suggest both a potential and, perhaps, even a capacity to effect change, which, when viewed from the seat of power, might be seen as an incitement to resist traditionally constituted authority. Like Canadians today, the seventeenth-century English were well acquainted with republican regimes and theory. In his study of the influence of classical republican thought on this period, Fink notes the strong hold exerted by the 'changeless and eternal' Venetian republic on English theorists and, in particular, its influence on James Harrington. In his major work, Oceana, Harrington applauded the institutions of the serene republic - a bicameral legislature, with the noble upper chamber proposing laws and the popular lower chamber disposing of them, and an elected 'Magistracy' executing the legislature's decisions. He admired the republic's political processes, such as the staggered rotation of officers (just as is done in the Senate of the United States today), and the use of the secret ballot. Most of all, in Venice he saw a regime committed, he said, to 'the Empire of Lawes and not of Men.' For Harrington, Venice confirmed the virtue of mixed government and the concepts to be gained by those wise enough to seek to emulate its virtue through constitutional engineering.22 Oceana appeared in 1656, during the Interregnum, and a decade after the execution of Charles I. But by that time 'the strength of the monarchical tradition, and the shallowness of the new republican one' were plainly evident.23 Demonstration of the first lay in Parliament's offer of the Crown to Cromwell in 1657; proof of the second was found in the failure to inaugurate any institutions or processes that could be identified as republican in imitation or inspiration. Rather than follow the elaborate constitution Harrington had expounded, Commonwealth leaders moved in the opposite direction. Instead of the harmony of a redesigned bicameral legislature, the House of Lords was dismissed and the Rump or Long Parliament engrossed all of Parliament's powers. Under his new constitution, Harrington had given the Senate (the upper chamber) the power to 'elect' ambassadors and judges and other prominent officials. In this and other reforms the republicans under the Protectorate sought once and for all to extinguish the Crown's prerogative powers and, in so doing, to separate the respective agencies of government. Part of the motivation here was the nonconformist belief in religious toleration, a strong current of thought among Puritan supporters of the Commonwealth. John Milton and other republican sympathizers feared that as long as the prerogative existed it could be used to restore

44 Part One the Anglican episcopacy, abolished in the 16405, and, if so used, once again to reinforce monarchical power.24 At the end of the twentieth century it is easy to ignore the influence once granted to religion in political matters. In the seventeenth century, in a revolution identified with the Puritans, it would be difficult to overestimate religion's importance. In the context of study of modern-day republicanism, however, the linkage with religion is indirect. The connection occurs not in England, which, after 1660, returned to being an erastian state, but through the United States, whose revolutionaries a century later took note of the English Commonwealth and found it wanting. The English republic was a failure, its constitution, in John Adams's words, 'ignoble,' 'unjust,' and just plain 'jumbled'; the only lessons to be learned 'negative' ones.25 Among these last was the wisdom of prohibiting established religion, not only or even primarily because all religious faiths should in principle be treated equally, but because to privilege one created a bond with the executive that could unbalance the parts of the constitution. The drafters at Philadelphia were determined not to repeat the mistake of their spiritual ancestors in republicanism. After the Glorious Revolution, according to H.A.L. Fisher, republicanism survived in England 'as a literary memory only.'26 E.P. Thompson disagrees; he argues that 'the dream of the egalitarian English republic' persisted into the nineteenth century, fed now by 'economic and industrial' unrest in response to government repression of the emerging working class.27 But this was a non- as opposed to an unconstitutional ambition. Arguably one of the most significant consequences of the American and French Revolutions was the bond they created between British radicalism on one hand and British patriotism on the other. The evolution of the British patriotic ideal in the nineteenth century touches not only offshore revolutions at the outset but the efflorescence of empire and jingoism at its end. It is a long and complicated story, yet relevant to the moulding of attitudes toward republicanism in Great Britain and in its colonies.28 Perspectives on the subject may diverge but none contradicts the general contention that after 1688 republicanism in Great Britain was a spent force. The constitutional structure following the Restoration was not in itself hostile to republican rule. The 'trinity of distinct but inseparably coordinated powers' served as a model of balanced government the American founding fathers willingly imitated - admittedly with emendation, such as the elimination of all hereditary offices, indeed of all pretension that any branch of government had an identifiable social base.29 But the Set-

The Appeal of Republicanism 45 tlement of 1688 created an 'equipoise' of institutions - King, Lords, and Commons - which at the same time found its unity in the contradictory concept of the King-in-Parliament. More than unity, the sovereignty of the nation rested in this theoretical integration. Here again was an aspect of the Settlement Americans were to reject, although they well knew an alternative source of sovereignty must be found: indeed, it was one of their criticisms of the English Commonwealth that in the absence of 'an indisputably legitimate lawgiver ... [no] lasting settlement' had been possible.30 The stability that followed 1688 was as marked as the conflict that preceded it. More than a constitutional understanding explained the peace - acceptance of religious toleration contributed to the calm - but with each of the three parts of Parliament agreed on its respective function under the Settlement, the opportunity for peaceful development of the constitution had arrived. The growth of parties, which ultimately would disturb the balance when they sought to control Parliament from within, is part of the history of this period. So too is the rise and triumph of economical reform and the challenge to royal patronage. For as long as the Crown could exercise these prerogatives in the assignment of offices and the allocation of purchases its influence over the other branches of the balanced constitution was more substantial than the theory allowed.31 'Balance' and 'separation' described, although they did not exhaust, the principal features of the British constitution after 1688. Nor did they stop the constitution from evolving. The direction of that process was toward the leaders in Parliament - first in the Lords and then in the Commons. Whether or not the Settlement was designed, as critics said, by and for the Whigs, the established order was nonetheless under pressure. If there was any doubt as to the transformation taking place, the passage of the Reform Act of 1832 resolved that uncertainty. Many interpretations may be given that famous example of peaceful revolution, but for the purposes of this discussion there are three to note. First, the franchise was extended, significantly in effect though marginally in terms of the numbers given the vote. The direction of change was in no doubt - population had entered and would remain part of the political calculus - and because there was no doubt, all demand or organization for radical constitutional reform ceased. The future lay with the House of Commons. How could one revolt against a system in the process of change - change, it should be remembered, that had begun fifty years before with attacks on the Crown's 'influence.'32 Second, the Reform Act, especially its very passage under the threat but not as the

46 Part One result of appointing new peers, represented the end of the balanced constitution in another sense. The House of Lords ceased any longer to be 'legitimated by its function/ This did not happen overnight, and it took the Parliament Act of 1911 which, for the first time, deprived the Lords of their absolute veto, to codify the shift in relative power of the two houses that had taken place, but after 1832 and with the passage of time, the concern of the Lords contracted as they turned to concentrate on their Vested privileges/33 Finally, because the Reform Act signalled that politics for the indefinite future would be about representation - the inclusion of ever and ever larger number of voters - the Crown itself was destined to suffer eclipse in influence. In light of the subject under discussion - the republican idea and its abandonment by the British after 1688 - there is some irony in the view Baron Stockmar offered Prince Albert in 1854 of monarchy's place in the constitution: Our Whigs ... are nothing but partly conscious, partly unconscious Republicans, who stand in the same relation to the Throne as the wolf does to the lamb. And these Whigs must have a natural inclination to push to extremity the constitutional fiction ... that it is unconstitutional to introduce and make use of the name and person of the irresponsible Sovereign in the public debates on matters bearing on the Constitution. Now, in our time, since Reform, the extinction of the genuine Tories, and the growth of those politicians ... who treat the existing Constitution merely as a bridge to a Republic, it is of extreme importance, that this fiction should be countenanced only provisionally, and that no opportunity should be let slip of vindicating the legitimate position of the Crown.34

Stockmar's view of republicanism has nothing to do with the classical theory discussed above, or with the theories of Harrington or Milton, or even with those of the American founding fathers. Instead, it equates republicanism with the absence of monarchy; a modern Canadian variant appears in the prediction that as the powers and office of the prime minister expand, he or she is transmogrified into a president. Stockmar was right in seeing the waning of monarchical influence, as the term was once understood. He was mistaken, however, in believing that the sovereign in Britain would fade away. On the contrary, a decade later Walter Bagehot 'invented' a new career for monarchs, and the relevant chapters of his English Constitution still comprise the current job description. Shortly after that Gladstone, and then Disraeli, cast the monarch in the additional symbolic role as unifier first of the nation and subse-

The Appeal of Republicanism 47 quently of the Empire. Under their ministrations the monarchy became what elsewhere and even for much of British history would have been an oxymoron - classless. In Gladstone's mind the renovation had a double advantage: it distracted, in Bagehot's words, 'the masses of Englishmen [who] are not fit for an elective government' and it gave the sovereign something to do at a time, said Gladstone, when 'the character & duties [of royalty] had greatly changed.'35 Although the American Revolution was to drive the British ever further away from the theory of the balanced constitution, the immediate response in London to news of rebellion in the Massachusetts colony was to attribute the conflict to an imbalance in the colonial constitutions themselves. It quickly became received wisdom that the assemblies had grown out of control because the governors possessed inadequate levers to restrain them. Fifteen years later, when the British were designing constitutions for Upper and Lower Canada, the axioms (for such they had become) from New England and the other colonies remained vivid and were acted upon. The American Patriots who took up arms at Concord and Lexington also thought the balanced constitution had come unhinged, only they looked to the Parliament at Westminster led by Lord North. The Americans found corroboration for their anatomy of the revolt in the writings of Catharine Macaulay. To her mind, the Glorious Revolution constituted a missed opportunity 'to cut off all the prerogatives of the Crown' and, more generally, 'to admit of any of those refinements and improvements, which the experience of mankind had enabled them to make in the science of political security.'36 Here indeed was failure to organize constitutional machinery. Here too were criticism worthy of a republican theorist, but not - nor was it intended to be - directed at her American cousins. Lord Acton said that the American Revolution represented 'an escape' - the first perhaps - 'from History.' Another way of looking at it was that it represented 'la premiere revolution permanente des temps modernes, c'est-a-dire une revolution aux possibilites illimitees et toujours inachevees.'37 These are large claims, yet when assessing the comparative influence of the eighteenth-century revolutions, Hobsbawn confidently places the American after the French. The latter, he says, was 'ecumenical'; it provided the world with the 'vocabulary' and the 'issues' of 'radical democratic polities' and 'nationalism.' There is no quarreling with his statement that '"the people" identified with "the nation" was a revolutionary concept.' Nor is there any doubt that, by contrast, the American Revolution 'left few major traces elsewhere.'38

48 Part One The figures compiled by Sartori cited earlier in this chapter bear out the continuing isolation of the American Revolution. Initially, its ideas did not travel far because, except for Canada, there was no where to carry them. The revolt on the Atlantic seaboard of North America remained confined to an intrafamily dispute, which was finally laid to rest in 1814. From the perspective of this chapter, however, the singularity of the American Revolution and subsequent constitutional deliberations lies elsewhere - in the commitment of its major leaders, reflected in the very idiom they used, to classical republican values and concepts: '[W]hen Americans used the word "republic" they thought of Rome. To the extent that the United States Constitution was self-consciously "republican," Roman models predominate.'39 There are numerous proofs for this statement, which will be examined below. For the moment the focus remains on the elements of republicanism previously discussed - mixed government, bicameral legislature, elected executive - and on two innovations in republican theory attributed to the American experiment. And, to be sure, it was seen as an experiment. The theory of the balanced constitution of 1688 was much admired by the Americans; it was its practice in eighteenth-century England that earned their disapproval. The place to begin was at the top, with the monarchy and hereditary privilege. Put simply, from an American and republican perspective, there should be no top. In a balanced system all parts were equal. Yet the King-in-Parliament, the sovereign core of the British constitution, contradicted that view on several grounds. Through the exercise of prerogative and discretionary power the Crown encroached on the autonomy of the Lords and the Commons. Where is the separation of powers in such an arrangement? Moreover, occupation of the throne was hereditary (similarly peers of the realm, who, in their corporate life, as the House of Lords, Americans admired for the restraint they exercised over the Commons, inherited their titles and privileges), and selection through hereditary means was a practice that violated other principles vital to a balanced constitution. First among these principles was representation, for it was the people who would constitute government through the processes of election. To the extent that the expression of popular will was muted, republican government faltered. But study of the experience of the classical republics warned Americans that democracy must be 'filtered' through representation.40 According to the Philadelphia agreement, indirect rather than direct elections would mould American democracy: electoral college for president and vice-president, state legislative selection for sena-

The Appeal of Republicanism

49

tors, and electoral processes and qualifications for all offices subject to state jurisdiction. So too would the different terms of office - four, six, and two years. In this sequence, which body spoke for the people? No one, for in this arrangement the 'whole [was] more representative than any of its constituent parts.'41 Here was 'the basic republican conception of popular sovereignty, according to which "all power" was "derived from the people," but never rested in them, or was carefully circumscribed when it did.'42 The United States constitution honoured the theory of mixed government, but it was a mixture with a difference and a consequence. All earlier conceptions had identified the familiar elements - monarchy, aristocracy, and democracy - with institutions of government. For example, the Senate of Rome had reflected the qualities of noble status and was balanced alongside the executive and the legislature with their respective qualities. The American framers rejected any suggestion of social inequality in the matter of representation; on the contrary, all parts of the constitution were, said Adams, 'emanations of the people' and for that reason, according to Pocock, 'the ... elected representatives would constitute a species of natural aristocracy.'43 Thus representation lay at the heart of American republican theory and, as a consequence, the act constituting the governing authority assumed paramount importance - for at this point the sovereign power of the constitution expressed itself. Yet if Americans thought there should be no top to government - that is, no hierarchy - they also thought there should be no inside to it either. That was the problem they saw with monarchical rule: its force emanated from within, from the permanent Crown. Republican rule, because of its emphasis on representation, was a government generated from outside. The inside-outside dichotomy could be misleading, however, since it might suggest that government adopted simply one or the other alternative. But American republican theory saw representation at different levels and in different parts of the constitution. Government in the United States was not so much about exercising authority as it was about expressing choices.44 And in furthering that intent, Daniel Elazar has argued, Americans conceived the principle of 'non-centralization.' In the article in which he develops this theory Elazar is talking principally about American federalism, but the perception is not confined to questions of jurisdiction. American republicanism is not the only republicanism, but it is the one Canadians know and the one they most often imitate. As subsequent

5O Part One chapters will demonstrate, modern Canadian politics borrows increasingly from this core of republican ideas developed in late-eighteenthcentury United States. Questions about political participation in Canada - level, form, frequency - echo American rhetoric but uneasily embrace assumptions about political activity that originate in fundamentally different premises from those that drove parliamentary politicians after the 17805. For example, from the Philadelphia Convention to the present, Americans (but not Canadians) have been 'preoccup[ied] with establishing effective popular control over government/ It is for this reason that the topics discussed by the convention delegates in the mid-iySos sound so modern: 'Questions about the best method of representation ... ranged over the issues of suffrage, apportionment, the frequency of election, tenure in office, eligibility for selection, the desirability of binding instructions, and provisions for recall.'45 Where these subjects have given rise to reforms the effect invariably has been to magnify outside influence on those in office. The founding fathers knowingly and actively promoted republican prescriptions and practices for the new United States constitution: liberty, discipline, and virtue secured through mixed but balanced institutions. However, they could not copy everything they needed, and among their two innovations in the realm of republican concepts is one that reinforces the American preoccupation with the subject of representation. Unlike every republic with which the authors of the constitution were familiar, the United States was vast, even in 1785, and would get vaster. How to deal with 'the problem of extent?' To be clear, the problem was that the ancients had said states were defined by what they held in common. And in the face-to-face world of the forum, citizens shared much in common, including, often, recognition of one another. This was not the case of the thirteen states, and yet practical reasons had led delegates to Philadelphia to create a stronger union. The solution was to give the states 'a variety of roles in the formation and the conduct of the national government/ but at the same time to endorse (Article IV, section 4) their integrity by guaranteeing each of them a republican form of government.46 Republicanism was the goal of the revolutionaries of the 17708 and republicanism offered the means by which the drafters of the constitution a decade later could integrate the colonies bordering the long Atlantic seaboard. To the classical view of a republican constitution designed to serve a society the Americans made their own distinctive contribution: they used republican government itself to incorporate ter-

The Appeal of Republicanism 51 ritory and extend society. In fact, two months prior to the signing of the constitution in September 1787, Congress passed the North-west Ordinance, which pledged republican governments and constitutions for the states to be erected out of that vast territory.47 The second innovation of the American republican experiment was the creation, first by Massachusetts (1780) and later followed in the formation of the Philadelphia Convention, of constituent assemblies. Elections were held in both instances to select delegates who it was 'explicitly [understood wouldl draft the Constitution.'48 This represented an important modification to the ancient concept of the 'lawgiver.' It also provided the American founders with the legitimacy they had found wanting in the English Commonwealth of the previous century. If a republic required an overt act of constitution-making - and there was no precedent for its evolving on its own - then the Philadelphia Convention, while not the first constituent assembly in the new states of America, became the prototype for all subsequent constitution makers. It also set the precedent for Article V of the constitution, which provides for the convention, as opposed to the legislative, mode of constitutional amendment. In the Philadelphia meeting and in Article V, Ackerman sees a 'reaffirmation of the popular symbolism' that infuses the revolutionary and republican history of the United States. Of greater moment for this study, however, Ackerman also contrasts British and American perceptions of the validity of constituent assemblies. It should come as no surprise to Canadians living in an era of constitutional uncertainty created by real and projected referenda and threats of secession to learn that 'while ... Conventions [constituent assemblies] might accomplish wonders, their legally anomalous character rendered their actions of doubtful legality. Thus, while the Convention/Parliament of 1688-89 could oust one king and call another to the throne, the English thought that the Convention's work required ratification by a legally perfect parliament with William and Mary sitting in their proper place.'49 The French Coda The American republic was created in the spirit and not the image of the Greco-Roman city states. The disparity in size was evident to all; less obvious yet determinative was what might be called the difference in human building material. For the founding fathers recognized from the outset that in the citizenry of the new republic, the clay they were given to work with was inferior to that which the ancients had to employ. But

52 Part One the Americans responded pragmatically to this fact of constitutional life: good states, they argued, did not depend upon the presence of good men; on the contrary, as Federalist No. w memorably showed, rightly organized states formed good citizens. It was because they accepted human nature as imperfect that the delegates at Philadelphia emphasized the importance of institutions, either as regards their composition (via election) or their function (in order to balance conflicting interests). The belief in the power of politics to do good but the acceptance of human imperfection fills the theories of Madison, Adams, Hamilton, and the others with a humane optimism. The result has been intellectually powerful and attractive - but not to the French. The American example thrilled critics of the ancien regime and even emboldened them; ultimately, however, it did not guide them. It should be remembered that while the Americans stood alone as successful revolutionaries and, for that reason, could say they had changed history, the constitution against which they had rebelled was equally attractive to those who looked outside of France for inspiration. Montesquieu alone said enough in his Spirit of the Laws to champion the balanced constitution produced by the Glorious Revolution. But once the time came to act, neither of the Anglo-American alternatives appeared attractive enough, for the significant reason that, in French eyes, neither was sufficiently radical. The British House of Lords and the American Senate were formed, defended, and expected to act according to aristocratic principle, hereditary in the case of the former, 'natural' (said Madison) in the case of the latter. Yet in France, distinction, deference, privilege, and hierarchy fell before what Acton called 'a passion for equality/ Here was the source and justification of le peuple and here the reason for erasing all past barriers to its expression. Thanks to universal suffrage and unicameralism France - not just Paris - would be a republic without restraint.50 '[Anne Robert] Turgot charged the American states with perpetuating "useless imitations of English usages," referring to the office of governor and the two houses of the state legislatures as "separate bodies" in the traditional sense of French estates. "They undertake to balance these different authorities," Turgot wrote in 1778, "as if the same equilibrium of power which had been thought necessary to balance the enormous preponderance of royalty could be of any use in republics, formed upon the equality of all the citizens."'51 French radicals had no use for the American model, which retained as much as it discarded of the celebrated constitution of 1688. Where the

The Appeal of Republicanism 53 American founders were not deemed timid, they were treated as irrelevant. That was a harsh judgment made by 'men of letters' with 'no practical power.'52 On both counts American leaders differed from the French; the authors of The Federalist eventually held the highest offices in the new republic. Harsh or not, the assessment was accurate enough the United States and France shared the label but little else that might be called republican. For the Americans, as for the English revolutionaries before them, the concern was to limit power. The republican answer to that quest was to separate the institutions of government and to make all of them agents of the people. Representation - albeit mediated and indirect - informed every part of the United States constitution. The French idea of republicanism would never accept so qualified an application of a principle. The people's voice must encounter no obstruction and no competition. Thus one organ, and one alone, would act as its vehicle of expression - the National Assembly. Facilitating, not restraining, the popular will was the first principle of French republicanism. In time, the continuity of the American republic, affirmed by a bloody civil war, stood in sharp contrast to the periodic reinvention of the French republic. Indeed, the very success of French republicanism during the longest-lasting republic to date, the Third, is credited by Sartori for the structure the Weimar constitution took in 1919: The drafters of [that] constitution looked with awe at the French Third Republic, and their overriding concern was to impede assembly government.'53 The Republican Aesthetic The delegates to the Continental Congress talked about politics, and the results of their discussions took the form of a draft constitution that required intense political persuasion to secure its passage by two-thirds of the states. But to limit republicanism to the political domain, to see it only from a public perspective, is to pervert the meaning of the term as employed in this late-eighteenth-century debate. The Greeks and Romans did not draw the modern distinction between public and private: had they done so the concepts of citizen and civic or public virtue would have assumed very different meanings from those now taught in classical political philosophy. Nor did the proponents of the Philadelphia agreement make the distinction. Of course, the same cannot be said of modern American politics, although even here the debate over citizen participation is not easily compartmentalized, since the definition of what is public and private is open to dispute, beginning with disagree-

54 Part One merit over whether the public and the governmental spheres are one and the same.54 These are important questions in a discussion of republicanism; however, they are more appropriately discussed in the context of representation (see below). They appear here only to emphasize that American republicanism today, but even more so at its inauguration, embraces a civic dimension that goes far beyond modern understanding of what is political. At the same time, that dimension had a recursive impact on public perceptions of what was political. The republican idea manifested itself in an aesthetic that pervaded post-revolutionary life. M.N.S. Sellers offers extensive proof to substantiate his claim that 'American republicans gloried in their classical antecedents, and dressed their revolution in the mantle and majesty of Roman antiquity wherever they could. American coins, paper money and official seals at the time of the Constitution were overwhelmingly Roman in design, and their values and sentiments were those of Rome's late republic. This meant Libertas, Virtus, Justitia, Concordia and a claim to serve the Res Publica, "pro bono publico/"55 Cinncinatus, Columbia, and Ceres prevail; George III and Britannia are vanquished. But Roman iconography was only the beginning, its triumph signalling a decline in 'references to existing English ideas, institutions and documents.'56 Paul Johnson notes that with the coming of the French Revolution republican correctness spread to 'clothes and hairstyles [and in Washington] the kind of dance you practiced' (the minuet belonged to the ancien regime, the cotillion did not).57 These historical references broaden an appreciation for the appeal of republicanism, because they underscore that in the 17805 republicanism was seen by Americans like Adams, Hamilton, Madison, and indeed Washington, as concerning more than a question of government or even of a constitution. It was about a new way of living, about a new society located on the frontier between what today would be called the public and the private spheres of activity. A caveat to the foregoing is necessary. It would be a mistake to think that only republics - and, more so, only the American republic - deliberately set out to deconstruct or reconstruct the symbols of their heritage. Linda Colley, for instance, has shown that the British response to French aggrandizement under Napolean was 'state-nationalization of nationalism,' with monarchy the 'chief beneficiary' of the process.58 Further support for this thesis can be found in the aptly titled volume The Invention of Tradition.59 Lest it be thought that Canadians of an earlier period were immune to similar sentiments - there being no

The Appeal of Republicanism 55 shortage of late-twentieth-century examples, such as Flag Day (1996), inaugurated 'to make Canadians feel good about their country' - the Third and Fourth Reports of the Standing Committee on Public Accounts of the Legislative Assembly of the United Canadas, 1855, offer ample rebuttal. At the direction of the Assembly, the committee, under the chairmanship of William Lyon Mackenzie, addressed 'a circular to Members of the Legislature, public accountants, brokers, and to such businessmen and others as any member of this Committee may name.' Among the questions recipients were asked was whether they favoured the adoption of a decimal currency. Testimony strongly supported this proposal on the grounds of convenience and accuracy as well as ease of instruction to those of 'the humblest capacity.' In addition to these practical considerations, symbolic reasons for the change were offered. As long as there was no provincial coinage, trade with the United States was transacted by banks in 'imported specie' from that country. Moreover, the absence of a provincial mint left the colony dependent upon the Royal Mint in London for its 'metallic circulating medium.' Except for India, there were no mints in the Empire outside England, their creation resting on the exercise of the prerogative. For these reasons, the committee was told, 'we, in some measure, lose our national character.' Certainly, the emblematic significance of a domestic currency was unmistakable when Canada compared her condition with that of the rest of the world in 1855: While every petty State in Europe, and Republic in South America, can boast of a Currency of its own, it is at once marvelous and humiliating to think that a country filling so large a space in the Map of the World as Canada, possessed of a soil so fertile, such boundless and valuable forests, such magnificent inland seas, such noble rivers, such illimitable water power, such an extensive commerce, and containing such an enterprising and energetic population, with powers of self government, should not (with the exception of the Penny-token of the Upper Canada Bank, and the Sou of Bas-Canada) have a single coin, it can call its own.60

In Canada, as in the United States, coinage was treated as an aspect of political self-definition. The difference was that where the Americans looked to the Roman republic for iconographical models and to republican France to borrow the decimal system, Canadians were eclectic in their choice of iconography and pragmatic when compelled to bring order out of the chaos of their colonial currency.61

56 Part One In contrast to Canada, the aesthetic of republicanism helped unify the United States physically, socially, and philosophically. Through it, Americans shared and perpetuated a tradition, the most visible representation of which is to be found in the architecture of republicanism. The contribution of architecture is magnified by the fact that the United States is a federation of states, indeed of republics, in consequence of Article IV, section 4, which guarantees each state 'a Republican form of Government/ Not all federations have found in architecture an integrative purpose (the Canadian experience is discussed below), yet in the United States the classical architectural idiom has served to symbolize 'adherence to a common republican ideal.'62 The elements that became 'the architectural symbols of American democracy' - the dome, rotunda, portico, and the balanced houses - took time to evolve. In their encyclopaedic Temples of Democracy, HenryRussell Hitchcock and William Scale say that the 'marriage' occurred for 'the first time' in the Pennsylvania state capital, built between 1810 and 1821,63 But even before that, the classically inspired state house, reminiscent of an ancient temple, in Richmond or Little Rock or Nashville, had become a 'revered landmark.' The former Arkansas state capital, seen around the world on television on election nights in 1992 and 1996, when Bill Clinton made his victory speech, was 'one of the great monuments of the new West empire.'64 After the 18205, new state capitals echoed the Harrisburg design and they have continued to do so, sometimes through more than one reconstruction, to the present day. The few exceptions to the (by now classic) arrangement - Bismark, Salem, and Baton Rouge all date from the 19305; Albany is the only nineteenth-century deviant stand out because they are exceptions. According to Hitchcock and Scale, the state houses preceded the national capitol as 'monumental' and 'coherent' structures. In so doing they symbolized the sequence of jurisdictional dominance in American federalism which, up to the Civil War, granted pre-eminence to the states. The war brought hundreds of thousands of soldiers to Washington and transformed their allegiance as a result: Then as never before I felt that my first loyalty was to THAT DOME - rather than to Michigan, Pennsylvania, or any other state ...f(>5 The architecture of republicanism did not stop with the capitol in Washington, it extended to the whole city.66 Nor was it limited to legislative buildings proper: the Washington monument (1830), Jefferson's home Monticello (completed in 1809), and the Lincoln and Jefferson memorials of the present century provide further examples. But like the American electoral pattern - terms of two, four, and six years and set election

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dates - the repetition of architectural forms of monumental scale, even in small and relatively poor states like West Virginia, complement the rhythm of republican politics throughout the nation. In Canada there is no aesthetic in the sense that the term is used above. It is sometimes said that Gothic is Canada's national style. The Parliament Buildings in Ottawa, built before Confederation to serve the legislature of the United Canadas, and which have housed the Parliament of Canada since 1867, are undoubtedly Gothic. Even the loss of the exuberant Centre Block through fire in 1916 and its replacement by a stucture of more restrained Gothic has not altered this collection's status as 'a national icon.'67 In Canada there is no more reiterated or identifiable architectural symbol than the Parliament Buildings. As well, there are eminent Gothic structures elsewhere, University College at the University of Toronto is the most frequently cited example. Yet no provincial legislative body sits in a Gothic building. No provincial legislature conforms to the dictum that classical architecture, with its Roman associations, 'resonatefs] with Republicanism' and Gothic architecture is synonymous with parliamentary government, which sprang from British soil.68 Instead, we find Georgian architecture in parts of the Maritimes, Second Empire in Quebec, Romanesque in Ontario, and variations on the classical theme in the four Western provinces.69 Rather than commonality among themselves and with the national style, there is singularity, achieved through architectural design, building materials, and siting, along with distinctive decor, statuary, and landscaping. What the provinces do share is the British parliamentary tradition. This tradition is invariably mentioned in visitor information literature, along with references to the Speaker, the sergeant-at-arms, and the Mace. But the British parliamentary tradition has exerted minimal influence over the design of the buildings. In Ontario and the West these were constructed to accommodate unicameral legislatures. This meant that the 'portion wherein the "common" people are supposed to take the greatest interest' was at the centre.70 Consequently, despite the size of the structures, the architecture emphasizes the concentration rather than balance of elements. Significantly, the architecture of the Houses of Parliament at Westminster similarly discriminate, only here it is 'royal magnificence' which is elevated at almost every turn. On the facade 'over three hundred statues were eventually erected: most of which depicted the English kings and queens since the Saxon period. But there was no representative of parliament or parliamentarians on the exterior of the palace/71 Inside, the royal entrance, the alignment of galleries and

58 Part One chambers, and the sumptuous decoration accentuated 'the role of the Crown-in-Parliament.'72 The Palace at Westminster was not the prototype of Canadian legislatures built after 1836. And while it was Gothic, it was Gothic symmetrically arranged: Tudor details on a classic body/ E.W. Pugin is supposed to have said.73 By contrast, the Canadian Houses of Parliament constructed three decades later were modern Gothic using modern technology, such as 'the first iron dome [for the Library] in Canada.'74 In politics architecture was not a unifying force in Canada. Arguably, it has contributed to the distinctiveness that is the basis of provincial identity. Quebec's Parliament Buildings were deliberately constructed in the Second Empire style of France because the architect, Eugene Tache, wanted 'to distance himself from the Parliament of Canada. With Renaissance and classical references in the interior and an 'ambitious iconographic programme' inside and outside, he sought 'to make the monument part of an historic community.' Through the use of 'statuary, paintings ... and armorial sculptures,' Tache created a unique 'Canadian Pantheon,' which continued to expand even after his death in 1912. According to the authors of the principal work on the architecture of the Quebec City structure, the facade, with over thirty statues drawn from the province's history, constitutes a 'discourse' and not just 'a simple illustration' of the people's history.75 The validity of that claim goes beyond the object of the present discussion. For our purposes the significant fact is that the Quebec Parliament Buildings do not share in an architectural ideal - republican or otherwise. They are sui generis in style and in attraction. Their distinction is that they are deemed to represent - to be the very part of - the citizens of their community. But Quebec is not different in kind, only in degree, from the other provincial legislatures. Each anchors its province's politics and history: witness the statue of George Vancouver atop the legislative buildings in Victoria; Chief Crowfoot in the rotunda at Edmonton; the Edmund Morris Collection of pastel drawings (completed in 1911) representing the various tribes in Saskatchewan and hanging in their own legislative gallery; Louis Kiel's controversial statue, once again standing in the grounds of the Manitoba legislature, along with La Verendrye, Robert Burns, Jon Sigurdsson, and Taras Schevchenko; the 'Ontario collection' of paintings and sculptures long associated with Queen's Park.76 These are only examples and it would require a different study than the one underway to evaluate the contribution provincial iconography

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makes to provincial identity. In any case, that undertaking is unnecessary. Enough has been said to establish the claim that for a long time after the Revolution Americans borrowed forms for the ideas associated with them. In the realm of public architecture especially, these forms were believed to affirm the republican virtue of balanced institutions in a constitution drawing on a mixture of elements - monarchy, aristocracy, and democracy. The true path of republicanism led to Rome. The appeal of republicanism was to a common purpose; it demanded and, in the states as well as the centre, elicited an agreed if not uniform response. Conversely, uniformity was not a prerequisite for monarchy or parliamentary government in Canada. The only commonalty in the provinces was subsection 92(1) of the Constitution Act, 1867, which prohibited provincial trespass upon the office of lieutenant-governor. With that exception the provinces could change their constitution and institutions as they saw fit, and for that reason it is difficult to imagine what a Canadian counterpart to Article IV, section 4 of the American constitution might say. For Americans, the appeal of republicanism lay in its requirement of conformity. For Canadians, political conformity has never held any attraction.

3

Canadian Attitudes: The Search for Constitutional Balance in Pre-Confederation Canada

Responsible government is the rock of Canada's political system. On it all else depends. Its 'achievement' is the story of countless history textbooks, its importance invariably celebrated by a coda recounting the country's long advance to autonomy in the Empire-Commonwealth. The combined work of English- and French-speaking moderates, responsible government symbolized Canada to the world and to itself. Reference to achievement implies adversity overcome. Lord Durham's Report and, more particularly, the emphasis interpreters have placed on its recommendation of local self-government, confirm the source of that resistance - officialdom in the colonies and in the Colonial Office. The translation of responsible government into practice proved more complex than the phrase alone would suggest. And part of the reason was that the beneficiaries of the established order were not its only opponents. It is understandable that those who had something to lose might resist change. But they were joined by others who raised a principled alarm to an innovation in government that they saw as both 'too democratic and tyrannical.'1 Responsible government was government without balance, and for more than fifty years in Canada (and longer in Great Britain and the United States) the ideal of a balanced constitution had commanded respect, indeed fidelity. The search for constitutional balance and its eventual abandonment in favour of the governmental form at the centre of modern federal and provincial politics is the subject of this chapter. Introduction Canadian attitudes to republicanism were formed in response not only

The Search for Constitutional Balance 61 to events in the United States; turmoil in France exerted a strong and direct influence as well. It tends to be forgotten today, but in the area of greatest interest to this study - constitutional ideas - the French Revolution, and particularly its culmination in a military dictatorship under Napoleon, blackened republicanism's claim to respect. In this light the American Revolution actually served as a corrective to attitudes toward republicanism. Nevertheless among the official class republicanism of either provenance was anathema, nor did this class always show a fine regard for distinguishing between the course of events in France and those on this side of the Atlantic. But official opinion was not public opinion, and while the last is difficult to estimate reliably, this and subsequent chapters devoted to the subjects of political participation, representation, and citizenship will demonstrate that a lasting sympathy existed outside of official circles for measures to promote these hallmarks of republican order. However, on those occasions when interest has flowed in this direction, popular opinion engaged an official response that was invariably unsympathetic. Taken separately, each of these occasions might be dismissed as having a distinctive and local origin and explanation. But taken together they point to the emergence and perpetuation in British North America of an emphasis on established authority - that is, authority that originates from inside rather than outside the governmental structure. The conclusion of the war with the United States (1814) and France (1815) brought to an end the revolutionary stage of republicanism as far as Canada was concerned. There are caveats to every generalization, however: some Canadians detected echoes of revolutionary republicanism a quarter of a century later in the Monroe Doctrine's claims to manifest destiny, while others, even before 1814, refused to believe that republicanism and revolution were one and the same thing. Discrimination was required in so volatile a period, and John Cosens Ogden, who toured the Canadas in the last year of the eighteenth century, perceived this hierarchy of concern when he observed that 'dreading revolutions [Canadian authorities] are cautious in receiving republicans from the States/2 But discrimination was not a commodity easily found among the rulers of the British North American colonies in the years of revolution. Nor was confidence in the successful outcome of their counterrevolutionary enterprise. General Isaac Brock, 'the mythic hero' of the War of 1812 and celebrated for his 'loyalty and conservatism' (Brock embodied half of 'the ideal Canadian identity/ it was said, the other

62 Part One half, 'primitive ruggedness and virtue/ being contributed by Tecumseh, the Shawnee chief), berated Upper Canadians for their defeatism. They were, he told a subordinate, 'essentially bad' for believing 'that this Province must inevitably succumb.'3 Fear dampened confidence and blunted discrimination. And for the official class of governors and their advisers between the conclusion of the Seven Years War and the War of 1812, fear was the dominant emotion. It manifested itself in affirmations of established authority, a pervading sense of insecurity, and endemic suspicion of political innovation. One of the popular interpretations of modern Canadian politics (by political scientist Gad Horowitz) adopts the fragment theory, expounded by American scholar Louis Hartz.4 Hartz argues that 'the liberal tradition in America' originated first in the mother country, gave an 'antecedent unity' to the colonial 'fragment culture' before 1776, became entrenched through revolution, and prevailed unopposed thereafter. The exceptionalism of American politics thus arises out of separation of the United States from Great Britain. Because Canada never severed these ties, her political culture remained subject to ideas from the larger world, ideas brought to Canada by immigrants. Although abbreviated, this depiction of the theory highlights the essential contrast between the two North American countries: the United States closed to new ideas, Canada open to them - at least until her own political culture took form. When, or even if, it 'congealed' (the word is Horowitz's) is a matter for debate which the present study is not designed to answer. But it does raise a supplementary question: did the collection of characteristics noted above - authority, insecurity, and suspicion - evident in the era of revolution that attended its early development continue into the present as features of the Canadian political system? Could it be that what happened in Canada was not a process of congealment, which implies some change of state, but reaction, both as a reciprocal and retrograde response? The natural centre of gravity of Canada's political system lies, as it has from the beginning, in established authority. With this first principle as its core, resistance to political dissent outside the parliamentary field is explicable. Canada may be one of the world's most decentralized federations, but its governments aggressively resist pretenders to their authority. Using as illustrations the Winnipeg General Strike (1919) and the October crisis of 1970 (when the terrorist activities of the Front de liberation du Quebec led to the first peacetime invocation of the War Measures Act), Kenneth McNaught has argued that 'the seditious con-

The Search for Constitutional Balance 63 spiracy charges in [these] cases were simply the legal synonym for ... allegations of "usurpation of constituted authority" accompanied by "threatened violence."'5 Nor is the sense of insecurity confined to politics: consider, for instance, Margaret Atwood's 'thematic guide to Canadian literature,' which she entitled Survival. Yet in politics insecurity as a stimulus to action, from building forts to establishing Canadian content regulations for broadcasting, is a persistent theme. So, too, is suspicion of political innovation, be it advocacy of the elective principle, or direct democracy at home, or experiments by otherwise like-minded people abroad. Sir John Bourinot, himself the epitome of an established Canadian constitutional authority, voiced the unease which the unfamiliar in Australian politics elicited: 'We may well wonder why the Australians - all English by origin and aspiration - should have shown so steady an inclination to deviate from the precedents established by a Dominion only partly English.'6 This reference to the Federation debates in Australia in the 18905 is all the more intriguing because it underlines one of that continent's cardinal characteristics when compared to Canada - its political nonconformity. Innovation in electoral and representational schemes is as marked among Australians as its absence is among Canadians. Australia may be geographically remote in the South Pacific and thus feel vulnerable, but that insecurity has not been transmitted into a defensive politics. By contrast, except for the period of the American Revolution and later that country's Civil War, Canada's geography has not produced military vulnerability. Yet in politics the situation is very different, and it is worth asking whether this insecurity finds its source in the revolutionary era. Canada, unlike Australia, was present at the beginning of modern republicanism; its history was directed by the course that conflict took in the United States and France, and its politics were moulded by the same events. Canada's constitutional evolution is longer and, given its internal composition and location alongside the United States, more complicated than Australia's. In his exploration of Lower Canada's development during the revolutionary period, 17731815, Jean-Pierre Wallot raises a conjecture first mooted in 1810 whether 'nous etions trop jeunes pour notre constitution.'7 This proposition could be said to describe the constitutional setting of Canada generally in the eighteenth century. The modern world offers examples enough to support the thesis that centralization of power is the first response of a political system under threat. The presence of a republic next door and its birth through revolution

64 Part One is not a sufficient explanation for the strong concern to protect established authority in Canada. Other factors, such as continental development moving from east to west and a staple economy, played their role in concentrating power. Again, if the frontier strengthened American democracy and deflected power from the centre, thus supporting Daniel Elazar's argument that a feature of government in the United States is 'non-centralization/ in Canada it worked in an opposite manner.8 Here the exposure of the frontier emphasized the vulnerability of the parts and accentuated their (sometimes reluctant) dependence upon the centre.9 The theme of centralization has to be treated with care, however, for a paradox must be acknowledged in the contrasting evolution of Canadian and American constitutional patterns. In Canada, politics as the natural centre of gravity may be exclusionary, but in other areas, such as language and law, diversity has been permitted. This is not the case in its neighbour, a constitutional system without a political centre. Again, how to explain this paradox? Could it be that a constitutional monarchy is more tolerant of variety and less demanding of coherence than a republican system of government? If republicanism and its genesis in revolution are not the sole explanation for the pre-eminence of established authority in the Canadian political system, they are important and early contributing factors. The influence of the American revolution on Canada's colonial political culture is complex and much studied, not least in the literature on the migration of the United Empire Loyalists.10 Indeed, the idea of loyalty itself and the theme of conservatism convey the importance attributed to maintaining established authority, for implicit in them are questions about loyalty to whom and conservation to what end? The cumulative significance of these matters is evident by the time of the Rebellions of 1837, for the identification of loyalty with support for established authority generates its opposite: the association of disloyalty with dissent. In this dichotomous arrangement of either-or and in-or-out, all power resides on one side. It is a world in which balancing and sharing power are unwelcome propositions. Thus modern proposals for parliamentary reform, which invariably have as their object a greater degree of independence from party discipline for backbench MPs, fail. And thus the balanced constitution, which had its origin in the Settlement of 1688 and purportedly informed the Constitutional Act, 1791 (giving to Upper and Lower Canada their first complement of executive and legislative institutions), also failed. As important as social, demographic, and economic forces in the late

The Search for Constitutional Balance 65 eighteenth and early nineteenth centuries are for Canadian development, the principal focus of the remainder of this chapter will be on constitutional adjustment. The area under review is the period after the American Revolution and before Confederation; for convenience it will be subdivided into two parts, with Lord Durham's Report (1839) serving as transitional event. That date is justified on the grounds that once the Union Act provided an institutional forum wherein the principle of responsible government was accepted, a change in attitude toward republicanism becomes evident. Prior to the 18405, periodic emergencies in the form of the American Revolution, the long war with France, war with the United States, and then, the Rebellions in Upper and Lower Canada coloured the Canadian response to republicanism, by associating it with violence and identifying its sympathizers as radicals. In the late 18405 and after, this perception itself underwent a radical alteration. Now measures associated with republican regimes (which for Canadians meant the United States), measures such as an elected upper chamber, are deemed conservative because of the restraint they pose for the operation of responsible government. The transformation of republicanism in Canadian eyes from a radical into a conservative force is one more reason why, as a system of government, it attracts few followers in this country. From American Revolution to Lord Durham's Report Executive Response

The effect of revolution outside the colonies of British North America was to entrench established authority within. Central to that strategy was the determination to silence critics whom the regime described as 'intriguers' and 'willful harangue[rs].' Animated by either an 'innovating spirit' or 'mischievous designs/ which, in the official view, were much the same thing, the trouble-makers were accused of seeking, among other things, 'to agitate the public mind by contested Elections,' 'to perplex His Majesty's Government' by ideas of 'equality and insubordination,' and to challenge the right order of things 'by the introduction of Acts of the Legislature, for the purposes to which by Common Law and the practice of the best regulated Colonies, the Crown alone is acknowledged to be competent.'11 For example, lieutenant-governors like Sir John Went worth in Nova Scotia (1792-1808) and Sir Peregrine Maitland in Upper Canada (1818-28) viewed with alarm the popular

66 Part One appeal of men like Cottnam Tonge in the former and Robert Gourlay in the latter.12 How much popular support they attracted and how representative it was of general colonial opinion is impossible to say, and in any case is not the issue. What matters is the early distinction made in official British North America between politics conducted within and outside the legal institutions of government. More singular still, only within the former configuration was politics deemed legitimate. The later development of political parties helped bridge the chasm between these licit and illicit worlds, but even here standards of required conduct - particularly evidence of loyalty to the party leadership - echo the original colonial distrust of individualism and independence. Perhaps, in light of the invasion of Canada by American revolutionaries in 1775-6 and the subsequent settlement of tens of thousands of Loyalists, a benign response by those in power was unreasonable to expect. But coming as soon as it did in the history of the colonies and, equally important, coinciding with reaction in Britain to the French Revolution, the official response foreclosed any possibility of a republican-type politics of participation gaining ground. Quite the reverse happened: in 1794, Parliament at Westminster moved to ban societies, synonymously referred to as 'conventions of the people,' whose object was 'to supersede the House of Commons in its Representative Capacity.'13 By the end of the decade, the contagion of repression had spread to Nova Scotia, for example, where Wentworth accused reformers like Tonge of instituting 'corresponding Societys [sic], Clubs & Committees, professing reforms, & proposing instructions as Tests, for elections.' Town meetings, labelled 'conventions/ were prohibited on the grounds of 'indecently interfering with His Majesty's authority and Government.'14 Eventually Tonge departed and the momentary challenge of reform in Nova Scotia subsided, but not before the alignment of forces it created had left a permanent imprint on the colony's political development. E.P. Thompson has argued that by banning unofficial organizations, Parliament affirmed an alignment of interests between landowners and manufacturers that 'thrust' 'working people ... into a state of apartheid, whose effects - in the niceties of social and educational discrimination can be felt to this day.'15 Wentworth was not alone in conflating the French and American revolutions, nor in seeing every reformer as a Jacobin. Over time such labelling of critics had its predictable effect. By the year of the Rebellions, nearly everyone professed loyalty and accepted the rules of the game. The problem for the reformers was neither the game nor the rules, except as the latter were applied by an

The Search for Constitutional Balance 67 umpire who consistently favoured one side: change the referee and all would be fine. For those like William Lyon Mackenzie and Louis-Joseph Papineau, who ultimately took a radical stand, however, both the game and its rules had to be fundamentally changed by introducing some republican elements. Nonetheless, Mackenzie and Papineau were always treated as extreme and unrepresentative and, once the danger they posed had passed, marginal as well. This is not to say there was no radical sentiment afterward, but it never matured into policy. The history of the Rouges and their radical heirs in Quebec provides a case in point. Whether the issue was annexation with the United States in the 18405 or a popular base for the institutions of the new province of Quebec at Confederation, they invariably lost the causes they championed.16 Long before that happened the situation in the old colony of Quebec raised cause for concern. Indeed, in what became Lower Canada after the Constitutional Act, 1791, conditions were ripe to excite anxiety among those who feared 'intriguers/ Distinctive land tenure and legal systems, the Roman Catholic religion, and the French language set the colony apart from its neighbours, just as they separated the mass of the population from its English and Protestant rulers. War with France heightened fear of disloyalty and, although historical research now reveals inadequate evidence to sustain this fear, the authorities looked to the potential and not the actual threat. A recent study of Quebec in the era of the French Revolution suggests two inescapable conclusions. First, fear of revolution led to extraordinary limitations on freedom. Support for that claim can be found in the following illustrations. The writ [of habeas corpus] was suspended for political cases in every calendar year but two from 1793 to 1811' and an Alien Act (1794), 'suspend [ing] rights to bail and speedy trial' as well as empowering the governor-in-council to deport individuals or groups from the colony, 'passed [the Assembly] with only three dissenting votes.17 Second, and on a par with Thompson's evaluation of the influence of the French War on English class structure, the 'garrison mentality' in Quebec drove a wedge between English and Canadien reformers which contributed to if it did not set on course a 'constitutional divorce between the factions.'18 Soon this assumed institutional form in the bitter battles between Legislative Council and Legislative Assembly, while over the decades its societal manifestation led to the metaphysical 'two solitudes.' Metaphors are useful because they are descriptive but they can also mislead. Only one conclusion can be drawn about the Canadian response to the revolutionary events taking place in the late eighteenth

68 Part One century: power tightened and attitudes hardened. Moreover, these events of two centuries ago exerted a determinative influence on Canadian politics and, especially, on its disposition to reform. But words like 'tighten' and 'harden' demand qualification, for it must be recalled that this study is limited to constitutional questions. The boundary with the United States might be more porous to new ideas than the wide Atlantic, but Canadians, especially those who spoke French, were not impervious to the appeal of revolutionary vocabulary coming from France. Just how susceptible they were, and how long it took for that susceptibility to become manifest are matters for debate in recent historical research.19 On the face of it, however, even those hardy seeds of revolutionary thought that successfully made the arduous journey found conditions in the New World inhospitable. Lower Canada was not France: its ruling class was not even French but English and Scots, and yet these officials, as well as merchants, looked to and received the support of the Roman Catholic hierarchy and leading seigneurs. Although the largest French-speaking society outside of France, the 'political discourse ... invented' by the French Revolution, and potent ever since, exerted minimal direct impact in this context. Abstract terms like droits, nation, and patrie, intensely powerful in their symbolism and appeal elsewhere, evoked a minor and depreciated response in Lower Canada. Contrary to being associated with the universal ideals of 1789, in the miniature and isolated world of the colony their meaning was reduced by local needs and condition.20 Constitutional Act, 1791 In one crucial respect the image of political power growing more concentrated as a result of the American Revolution is singularly inapt. The most visible answer in Canada to the loss of the American colonies was to devolve constitutional power through a division of territory. Where once there was only the government at Quebec, after the Constitutional Act of 1791, there were two - one for each of the new colonies of Upper and Lower Canada. Again, instead of Nova Scotia standing alone, after 1784 Nova Scotia, New Brunswick, and Cape Breton existed as separate colonies. For the purposes of this study, the more significant of the two divisions was the Canadian, for the Act of 1791 represents the first occasion when the full constitutional structure of a British colony was set down by statute. New Brunswick and Cape Breton, 'inheriting the constitution of the colony from which they were severed, were granted

The Search for Constitutional Balance 69 elected assemblies from the outset/ although Cape Breton's was never summoned.21 The statutory route was required for the Canadas because the Constitutional Act altered the constitution of Quebec set down in the Act of that name in 1774. Most particularly, the Act of 1791 introduced representative government to an area of British North America without experience of popular elections (the Legislative Assembly of Nova Scotia first met in 1758 and that of Prince Edward Island in 1773). It was also the area that would become the heartland of the future federation of Canada. For that reason there is practical truth (if some historical distortion) in Claude Ryan's observation at the time of the two-hundredth anniversary of the Act that 'Parliamentary life in Canada ... stemmed from the 1791 constitution.'22 The importance of the Act cannot be disputed, however. It established the institutional structure through which responsible government would be realized while providing French-speaking Canadians with the principal forum in which their leaders advanced a definition of cultural and economic interests that identified Canadiens as distinct. Finally, through accommodations arrived at within its confines (and, more specifically, after the Union of the Canadas in 1840), the foundation was laid for the dualism that characterizes so much of Canadian life today. True as this is, there is another legacy of the Act which is generally forgotten, as it was at the time of the bicentennial commemoration. The Constitutional Act, 1791, was unique in providing a full complement of institutions identified with the British constitution, and among these was an upper chamber - the Legislative Council - for each of the two Canadas. In this respect Ryan's comment that Canada's parliamentary lineage begins in 1791 is eminently correct: with that Act bicameralism comes to Canada and, taking Ryan's depiction as accurate, it remains in the form of the Senate. The arrival of bicameralism was a matter of some moment, especially given that its introduction was made via the statutory route. Before Confederation the three Maritime colonies introduced Legislative Councils (New Brunswick in 1832, Nova Scotia in 1837, and Prince Edward Island 1839), but in each case by petition to the sovereign, who then altered the instructions of the respective colonial governors.23 The different procedure is explained by the fact that unlike the Canadas, the other colonies had constitutions based on exercise of the prerogative. Indeed, they still do - a distinction that sets them apart not only from present-day Quebec and Ontario but from the three Prairie provinces as well, and one which, in its lack of coherence, underlines a major contrast

7O Part One between Canadian and American federalism.24 Separately provided for in the Constitutional Act, 1791, the Legislative Council must be assumed to have been intended to serve a specific purpose. That purpose was to provide ballast to the constitutions of the new colonies. In its design, the Act is traditionally understood to correct the deficiencies of government as revealed in the thirteen colonies before the American Revolution. In this respect, therefore, its provisions constitute an early example of constitutional engineering. The lesson of the Revolution, as seen in London, was that the old assemblies had grown too strong because the governors were too weak. Thus the Crown's powers of patronage and the purse must be extended, while the new assemblies' influence on these matters had correspondingly to be curtailed. Furthermore, the old system of royal government had proved institutionally deficient. While eleven of the thirteen colonies were bicameral (Georgia and Pennsylvania being the exceptions), their upper houses were not second chambers in the sense accepted today; rather the governor's advisory council 'actfed] as the second branch of the legislature.'25 Duplication of structure led to confusion of function with the same persons acting at different times in administrative, judicial, and legislative capacities. The innovation of the Constitutional Act, 1791, was to provide for two councils- one executive, the other legislative - with the first to act as adviser to the governor (in modern guise, the cabinet)and the second to - to do what? Canadian historians agree on the role of the council: it was 'to balance the democratic element in the assembly,' 'to confine democracy within reasonable limits,' and 'to act as a check upon the assembly and to share the power of law-making with it.'26 There is truth in this assessment but only a partial truth; without further explanation the constitutional importance of the innovation is inadequately communicated. The tripartite arrangement sanctioned by the Constitutional Act, 1791, made a mixed or balanced constitution possible. Only then could the elements of monarchy, aristocracy, and democracy find institutional expression; only then, in the words of Charles James Fox during the passage of the Act, could the 'poise of the constitution' be assured.27 The Act is justly renowned in Canada for its association with institutions and practices that have moulded the country's development. Its association with the theory of the separation of powers - the then celebrated principle of the British constitution - has received less acknowledgment, in large part because the arrangement of powers of 1791 has retrospectively been discredited in Canada. The Rebellions of 1837 and the later triumph of

The Search for Constitutional Balance 71 responsible government tarnished the Act's reputation: if on the one hand it gave representative government to the Canadas, on the other hand it thwarted government in response to opinion expressed in the assembly. The theory of balanced government appeared to be a charade, since the aristocratic element, expressed through the Legislative Council, was not independent but predictably and consistently an ally of established authority identified with the person of the governor and his advisers. Appointment for life, with the possibility (which was never implemented) of making membership hereditary, further separated the Legislative Council from the ordinary colonist while making council participation in the passage of legislation still less tolerable. When responsible government was achieved, and with it access to the Crown's patronage power over appointments, the composition of the Legislative Council proved less controversial to those who dominated the assembly. The Legislative Council was now amenable to assembly direction, but its contribution to government was no clearer: having swung toward the governor before 1848, it now swung toward those who controlled the assembly. The role of the upper chamber remains a puzzle in Canadian politics at the end of the twentieth century. No institution of the governmental system has attracted more criticism and proposals for change, or proved so intractable of reform, as the Senate. Chapter 4 will look at these questions in the context of representation. For the moment, the focus is on the theory of a second chamber that surrounded the introduction of the Legislative Council in 1791. The place to start is the debate in the House of Commons at Westminster on the 'Quebec Governmental Bill' (Constitutional Act) 1791. Edmund Burke, Pitt the Younger, and Charles James Fox were the principal participants, with the last two making notable contributions to constitutional theory in so far as it was to develop in Canada Burke remained content to observe that 'monarchy was the basis of all good government, and the nearer to monarchy any government approached, the more perfect it was.' Between Pitt and Fox the debate turned on the respective merits of 'an hereditary council, in imitation of our House of Lords' (Pitt), and an elective council, which Fox hastened to explain was nothing 'like instilling republican principles into the new constitution for Canada.' On the contrary, he contended, in a society without rank and where property easily changed hands, election was the only way to designate an aristocratic element. Through property qualifications for both candidate and voter an independent aristocracy prepared to resist Crown and people in the public interest

72 Part One would emerge. Conversely, an appointed upper house would be but the 'semblance' of an aristocracy and not its 'substitute.' Fox and Pitt agreed on the ends they sought - a balanced constitution - but disagreed over the means by which the aristocratic or deliberative element should be constituted. To this difference of opinion might be added another: whether constitutions, in this case that of the mother country, were imitable. Pitt's preference for appointing rather than electing councillors carried the day - but it did not end the argument. In fact, over time it fed it; for Canadians and Canadiens the nominated upper chamber came to symbolize an uncomprehending and unresponsive constitution. Fernand Quellet has written that the composition of the council promoted 'the radicalization of the Patriote movement' and this, in turn, prompted calls for 'the elective principle at all levels.'28 The problem, as even a defender of the 1791 constitution like John Neilson eventually recognized, was that 'legally the character of the government was changed, but the administration remained nearly the same ... It was a corporation filling up its own vacancies, having perpetual succession.'29 Neilson, editor of the Quebec Gazette for fifty years and champion of the Canadien cause, 'loved' the principle of institutional harmony because he believed it offered greater protection to minority interests than a system based on majoritarian rule.30 Talk of responsible government (still twenty years in the future) and proposals in 1820 to unite the two Canadas (which were never carried out), gave substance to Neilson's concern, as did knowledge of England's union with Scotland (1707) and Ireland (1801). The latter was frequently referred to, usually accompanied by words like oppression, and in uneasy minds could not help but recall Thomas Paine's ominous description of the English constitution as a 'sepulchre of precedents.'31 Canadiens, their leaders among them - men like Louis-Joseph Papineau and Denis-Benjamin Viger - expressed similar devotion to the theory of the constitution at the same time as they grew frustrated with its perverse operation. The story of the reformers' mounting frustration, of the allegiance rather than independent judgment that Legislative Councillors gave to the governor, of the contest of nationalities instead of policies that divided Lower Canada - that story is well known. So well known and so seemingly unrelated to the country's ultimate constitutional course, perhaps, as to distract attention from the 1791 Act. Like the English Revolution, which 'in school textbooks ... becomes "the Interregnum,"' the balance-of-power experiment - because it too failed - appears as 'something that never really happened.'32 Yet the early decades of the nine-

The Search for Constitutional Balance 73 teenth century are more than just a prologue to the achievement of responsible government in the 18405. As already noted, the question of minority rights and how best to protect them arises at this time and in the vocabulary of the period. A commentary by James Stephen (then law counsel to the Colonial Office and from 1836 to 1847, permanent under-secretary of state) on Canadien testimony given before the British parliamentary Select Committee on the Civil Government of Canada (1828) notes that 'the French Population look forward to the establishment of la Nation Canadienne as the great counterpoise to the English authority on the North American Continent.'33 In the meantime the Assembly was to serve as the weight Canadiens used to right the scales. Paradoxically, that ambition for what today would be called cultural equality upset the constitutional balance: making the Assembly the fulcrum of Canadien strategy threatened the independence of the Crown. In this situation, Stephen observed: '[The governor] must be the Agent and Minister of the Assembly, rather than a co-ordinate or superior authority.' As a result, his 'influence [is] narrowed to that of the President of a Republic ... indebted for his weight in the Province to the favorable opinion which may be entertained of his personal character.'34 More than one kind of balance is at issue here. There is the idea of balanced powers leading to mixed government - the principle associated with the years 1688, 1787, and 1791. But there is also the idea of cultural balance and its institutional expression. Official opinion in Britain and Lower Canada saw the second version in conflict with the first when specific institutions were exploited to advance the cultural cause. Whether that is necessarily the case or whether, conversely, a system that unites rather than divides powers (the cabinet system, for example) does a better job of accommodating cultural assertiveness, is another matter for discussion. The early decades of the last century witnessed unprecedented constitutional flux. In Europe and Great Britain as well as in North America, concepts lacked precision because language failed to keep abreast of change. In the Quebec Governmental Bill, Fox denied that an elected Legislative Council necessarily implied a republican form of government, and those Lower Canadians who later took up this particular cause agreed with him. What was republican, but not part of American republicanism in the sense the framers at Philadelphia understood, was the depiction of the executive as an agent of the Assembly. That vision required a crucial prerequisite act - the severing of the Crown from Parliament. Rather than the historic unity of a tripartite constitution of King, Lords and Commons, the constitution now had to

74 Part One be composed of elements whose validity derived from their relationship to the dominant Assembly. Republican Ideas and Rebellion

The famous Ninety-Two Resolutions, passed in 1834 by the Lower Canada House of Assembly, demanded an extension of the elective principle. One of the institutions deemed ripe for reform was the Legislative Council which in its appointed state, resolutions 23 and 32 judged, had 'little community of interest with the colony/ Authentic councillors, they declared, are those 'who partake the opinions of the people/35 Gone is the view, expressed twenty-five years earlier by Le Courier de Quebec, that 'Le Conseil legislatif est le pouvoir intermediate qui tient la balance entre les deux [le Representant du Roi et la chambre du peuple]/36 In its place is the idea of elective institutions as a substitute for responsible government. Here is where the elective principle gains its reputation as a radical alternative to both the old constitution of mixed government and the new emerging constitution of cabinet government. If this be republicanism, it is republicanism without balance. There is no trace of classical republican theory, no hint of emulating American republicanism, despite the fact that until the election of Andrew Jackson in 1828, the original mould was still largely intact. It is of some importance to later political development in Canada that the first voices for republicanism heard in the popular arena should speak not of virtue and the public good as Adams and Madison had, but of victory and popular will, as Jackson now did. Instead of republicanism being presented as an arrangement to promote liberty by moderating power, it is associated with democracy and democracy with excess. And for critics like Egerton Ryerson at the time of the War of 1812, the historical analogy for the United States was no longer Rome or Athens but Persia: The Spartan bands of Canadian Loyalist volunteers, aided by a few hundred English soldiers and civilized Indians, repelled the Persian thousands of democratic American invaders/37 Emphasis upon the election of most public officials, and not just legislative councillors, revealed a partial understanding of republican ideas on the part of their advocates in Canada, which in turn contributed to popular misunderstanding of republicanism as a form of government. One explanation for the promotion of the elective principle to the exclusion of other, more central features of classical republican theory is that the enthusiasm for election borrows not from American but other sources. In his presiden-

The Search for Constitutional Balance 75 tial address to the Canadian Historical Association on the centenary of the 1837 Rebellion, Chester New claimed that only after Viger and William Lyon Mackenzie had visited England in 1832, and been in close contact with Radical leaders there, did 'we hear of an elective upper house in both provinces.'38 Yet that could also be a secondary manifestation, since the United States had become for English radicals the primary source of inspiration. Minus the division of nationalities of Lower Canada, the preceding comments about the poor relations between the two houses of the colony's legislature could be repeated for Upper Canada. And for the same reason. There was a 'perpetual succession' upriver as well as down,only the names were different - the Family Compact at York, the Chateau Clique at Quebec. The same close knit interests, the same interpenetration of offices and overlapping personnel prevailed. One difference and it was to have some relevance to the matter of republicanism in Canada - lay in 'the different bases of power of the two factions; that of the Chateau clique in economic and particularly commercial activities and that of the Family Compact in land and control of the state.' In the 18405 this difference affected attitudes to proposals for annexation to the United States; more particularly, 'Montreal merchants' saw the United States as a welcome source of capital.39 There were other differences, of course. Lower Canada was overwhelmingly Roman Catholic, Upper Canada predominantly Protestant. The significance of religion, however, lay less in differences of church doctrine than it did in contrasts of church structure: for the vast majority of Canadiens the Roman Catholic hierarchy exerted massive influence, while in Upper Canada sectarian jealousy and controversy limited the pretensions of any one denomination. Denominationalism and loyalty became an issue in Upper Canada but not to such an extent as to set the constitutional politics of the colony apart in any fundamental way from that of its sister downstream. Nor for that matter did the conduct or policies of the colony's radical leadership. No one would mistake William Lyon Mackenzie for LouisJoseph Papineau; in background, education, and status in society, they had little in common. Yet from the perspective of this study, their journey from being supporters of the 1791 constitution to its critics and then opponents does not look very different. Believers in the principle of balanced institutions, they grew cynical and suspicious of all concentrations of power that undermined it. Like Papineau, Mackenzie fixed his attention on the Legislative Council (the 'Seventh Report on Grievances, 1835,' produced by a House of Assembly committee Mackenzie chaired,

76 Part One accepted a description of the council as 'the root of all the evils complained of in both Provinces'), but unlike Papineau, Mackenzie equivocated over the remedy to apply - an elected council or a responsible ministry.40 Mackenzie's ambivalence can be explained by the difference in structure between the two debates. In Lower Canada, the ethnic division simplified the alignment by limiting the choices on offer. In Upper Canada, Tories pointing to everyone who disagreed with them as disloyal were ever present, but there was as well a range of opponents from moderate reformers who wanted to work within the constitution to radicals ready to countenance extraconstitutional means. At least in the years before responsible government won the day, Mackenzie was enough of a politician to keep his options open. And while Robert Baldwin is invariably awarded paternity of the principle, there is some substance to the claim that Mackenzie's 'rougher hands [were] needed to shake up the dry bones of Downing Street and the Family Compact.'41 Mackenzie accounts for part of the interest in the Constitutional Act, 1791, but by no means all or even a major part. On the contrary, the Act's significance in the context of the history of Upper Canada has more to do with constitutional theory than it does with personalities. This claim conflicts with the assertion by one of the most quoted authorities on the era that 'before the war [1812] the province had no real political history.'42 The situation was quite the reverse; in Upper unlike Lower Canada, the principle of balance and harmony might be given a fair try, one not prejudiced by racial antagonisms. In other words, only in Upper Canada could the principle be put to the test. Yet it failed. Some might say that it was not a true test, because in a colonial situation where those in authority feared opposition the idea of balance was compromised from the outset. Others might argue that to believe that an aristocratic element could be found in the forests of the New World was unrealistic and illusionary. For evidence, they could cite the permissive clauses of the 1791 Act linking hereditary titles to Legislative Council seats. They could even go further and note the unsuccessful attempt by the province's first lieutenant-governor, John Graves Simcoe, 'to establish a provincial aristocracy' by appointing 'a lieutenant in each county, who, in turn, was to select deputy lieutenants, colonels, lieutenant-colonels and majors.'43 That is all true, and of interest, but the greatest attention should be reserved for explaining why none of it happened. Simcoe talked of rendering 'the Province as nearly as may be a perfect

The Search for Constitutional Balance 77 image and transcript of the British Government and Constitution/ and it was Simcoe who believed that 'the Experience of Ages has proved [aristocracy] necessary to the Ballance and Permanency of [Britain's] inestimable form of Government/ Yet he was thwarted in his ambition by the government in London, for reasons that cast strong doubt on the proposition whether the aristocratic element and therefore the balanced constitution itself could be exported to Canada or anywhere else. In reply, the Home Secretary, the Duke of Portland, made a strong case in the negative: I observe that your adoption of [the county lieutenancy measures] arises from an idea, that by assimilating the modes of the Government of the Province, to the modes of the Government of England, you will obtain all the beneficial effects which we receive from them - Whereas to assimilate a Colony in all respects to its Mother Country, is not possible, and if possible, would not be prudent. The one may have many Institutions which are wholly inapplicable to the situation of the other - Some there may be, which we permit to continue here only, because they already exist, and are interwoven with other parts of the Government, but which, perhaps, if we had a choice, we should not now be disposed originally to introduce - Such, in the Opinion of many, are Corporations, and separate Jurisdictions of all sorts. Others there are which may be objectionable in a Colony, as tending to lessen the Authority which the Parent State ought to possess over it, as long as that relation subsists between them - Of this description I conceive to be all subordinate Powers created in the Colony, beyond those which are absolutely necessary for its Internal Police - The Power of the Person having the Government, is the Power of this Country; but such subordinate Powers as are proposed, are not ours. - We have no Connection with, or direct Influence over, those who exercise them - They are rather means and instruments of Independence.44

Appointment laid the groundwork for factions, and factions, the American Revolution taught, could undermine the authority of the Crown. At this point the two Canadian responses to revolution and republicanism came into conflict. How to repulse challenges to established authority and at the same time promote institutional arrangements to realize the theory of the balanced constitution? For now, in Upper Canada, the response of the imperial government echoes the suspicion of the Assembly. Both distrust an intermediate 'aristocratic' element. At the time of the passage of the Constitutional Act, 1791, Pitt had proposed 'a hereditary council, in imitation of our House of Lords.' As a

78 Part One criterion of selection, heredity had been forfeited from the start. Now doubt was cast on what might be called community leaders as 'natural' appointees. Where were councillors to be found? Election, even with high property qualifications for candidates and voters, had been rejected in 1791 on the grounds that it would produce two popular assemblies and, thus, confusion. Did it follow, asked the Colonial Secretary, Lord Glenelg, only two months before the outbreak of the Rebellions, that 'we must remain exactly as we are? Is there no alternative but the elective principle or the principle of nomination for life?'45 Glenelg listed five alternatives for consideration: consolidate the executive and legislative councils (as in every British colony but New Brunswick); appoint legislative councillors during the pleasure of the Crown; make appointments to the Legislative Council coterminus with the life of the provincial Parliament; make appointments for a fixed term (six or eight years) instead of for life; and introduce rotational term appointments with a definite proportion retiring annually.46 As it turned out, the Rebellions hastened the union of the two colonies, which brought in train a single Parliament for the United Canadas with an upper chamber appointed for life. Glenelg's survey of alternative modes of selection lay dormant for a decade, until once again pressure mounted for an elected Legislative Council. As noted below, that mechanism was finally introduced for a portion of the council's seats in 1856. The context of this discussion may be viewed as antique, but the questions it raises are far from anachronistic. They are modern or, at least, perennial. The debate over a Triple-E Senate, for example, centres on the strengths and weaknesses of the elective principle and on the adjustments that would accompany its implementation. More germane still, the debate once again evokes the spirit of republicanism. Now as in the first half of the last century, critics dismiss a popularly elected chamber as inconsistent with the prevailing theory of the constitution, which is no longer one of balance but of responsibility. For it is the principle of responsible government, accepted by the imperial government a decade after the Rebellions, which has provided constancy to Canadian politics over the past 150 years. There is a large literature on the Rebellions and the details of those events consequently do not require repeating here. Two points call for notice nonetheless. First, when seen as challenges to the constitutional norm (as opposed to a nationalist interpretation of the conflict in Lower Canada), the Rebellions are distinctively Canadian. Things did not fall apart; the centre held; and, yet, reform was not rejected. Responsible

The Search for Constitutional Balance 79 government, the Canadian version of democracy, followed at a decent interval the call to arms. Mackenzie and Papineau were vindicated - the system did need changing! At the same time, outwardly, hardly anything appeared to change. After 1840, there was one Canada instead of two, but it had the same trinity of institutions - Crown, council, and Assembly - and, more remarkably, the Legislative Council like its predecessors, remained an appointed body. Yet, inwardly, something fundamental happened after 1848: in future those who advised the Crown had to command the support of the Assembly. Thus, where once overlap of executive and legislative councillors had been the source of popular grievance, now an overlap of council and Assembly officials was required by convention. Visibly, however, pre- and post-Rebellion politics looked much the same. Even Mackenzie and Papineau - rebel leaders and then exiles for a time - returned repentant but rehabilitated.47 In fact, the second point to note about the Rebellions is their incorporation into the political evolution of British North America. The ferment of the period, the repeated resort to direct political action in both Canadas, the mass expression of opinion, the rhetoric of opposition - what in short might be cited as evidence of popular constitutionalism - are compressed into an interpretation of Canadian politics as a sequence of peace, order, and good government.48 It is Bourinot, again, who expresses in exaggerated utterance the conventional view of 1837: 'A popular outbreak - in Lower Canada - confined to ... an insignificant faction, whilst ... in Upper Canada it was almost contemptible as respects the ... number of the people immediately engaged in it.'49 That interpretation neatly disparages popular constitutionalism, and it does so for obvious reasons. First, to focus on popular discontent, at least in Lower Canada, runs the risk of drawing attention to its nationalist dimension, symbolized however briefly by a revolutionary republican iconography of its own.50 Second, the popular content of responsible government is at best mediated, by parties and through Parliament. In other words, the popular will must be interpreted. That at least has long been the theory, and to the extent it changes so, too, must concepts of representation. How distorted can the mirror of representation be before it ceases to reflect the larger world? Because popular constitutionalism challenges rather than sustains responsible government, evidence of its vitality is depreciated. Instead, responsible government is 'forged' within the Parliament of the United Canadas by Robert Baldwin and Louis-Hippolyte La Fontaine. Thus the achievement of responsible government is a double triumph: constitutional and cultural, but

8o Part One not popular in the sense that it derives from or has the sanction of public participation. It was just this kind of authentication that Mackenzie and Papineau argued was required. Bourinot and other commentators were nonetheless right: when the time came to act few rose to support either leader. One of Mackenzie's biographers has written that he 'represented the spirit of [hisl age.'51 If that was so, then the age and Canada had little in common. The Rebellion taught that Mackenzie was not the representative type of Canadian. Nor has history dislodged him or Papineau from their radical niche. Exactly one hundred years after the Rebellion, Canadian volunteers in Spain, who had gone to save republican democracy against fascism, memorialized the two leaders by naming their battalion the Mac-Paps. In the same year, the government of Canada led by Mackenzie King, grandson of the famous radical, prohibited by statute (backed up with wide discretionary power) 'any Canadian National' from entering, or aiding another who had entered, the Spanish Civil War.52 Lord Durham's Report and the Subsequent Union of the Canadas The Report's Recommendations

The spirit of the age as far as Canada and the Empire were concerned lay elsewhere, with Lord Durham and his famous Report on the Affairs of British North America. If Canada has any claim to constitutional distinction of the first rank it lies in the events that surround Durham's brief appointment as governor general and his subsequent Report. That document is the Alpha and the Statute of Westminster the Omega of the century-long march to autonomy. But it is much more than this, for in addition to dealing with the 'problem' of independence, it deals also with two other imponderables: nationality and accountability. For the purposes of this discussion the latter matter holds the greater interest. Durham recommended the introduction of responsible government as a means of reconciling two elements of the constitution which for much of the life of the 1791 Act, had remained irreconcilable. If the political executive, who advised the governor, had to command the support of the Assembly then the deadlock and acrimony that had consistently characterized colonial government would disappear. No longer would the Assembly resort, as it had, in Lower Canada especially, to tactics that Durham and others saw as bordering on the unconstitutional. That is,

The Search for Constitutional Balance 81 unconstitutional in the sense, said Durham, that they 'transgressed our notions of the proper limits of Parliamentary interference.' What he had in mind were legislative committee inquiries, 'which brought the whole action of the executive immediately under its purview/ attempts to impeach officials; and, on occasion, 'a general refusal of supplies.'53 Contrary to the received view that the Report's recommendations were intended to strengthen the legislature in its dealings with the executive, it is equally possible to argue that they were designed to rehabilitate an executive actively impeded in its work by a frustrated legislature.54 Once again, as at the time of the American Revolution, the constitutional problem was treated as one of imbalance. In modern-day Canada responsible government is not about balance but about concentrated power; however, this was not Durham's view. Like the Whigs for a century and half before him, Durham's theory of the constitution derived from the Settlement of 1688, and adoption of responsible government was intended to restore the harmony of that much-admired scheme of government. Ironically, in light of later interpretations of the period, Durham actually believed the Legislative Councils of the two Canadas had contributed to the quality of colonial government. They had done their job of checking the assemblies who, had they had their way, would have destroyed any pretence to parliamentary government. The Legislative Councils applied a needed brake to democratic excess. Holding this view Durham had no reason to propose fundamental changes to the deliberative element of the constitution. Nor did he. Like other reformers (but not radicals), Durham believed that in a new society without the order of the old the Legislative Council could still replicate the House of Lords. But if its appointees did not represent ancient estates and if an elected council was unacceptable, then what did the council stand for? The answer, although never clearly articulated, was 'good government/ The council's justification lay in what it did - review and supervision not in what or who it was. Thus it made no sense to talk about the council 'representing' anything, other than sound judgment. Durham wrote his report in the winter of 1838-9, six years after the passage of the Reform Act of 1832, itself the culmination of a halfcentury campaign to reform the old parliamentary system in Britain. One of those reforms abolished rotten boroughs whereby patrons in the Lords determined the selection of MPs and, thus, in turn exercised a determinative influence over the Commons (memorably depicted in Anthony Trollope's Palliser novels). Another struck a further blow to

82 Part One Crown patronage. Together they sought to disentangle the elements of the constitution and, more particularly, to increase the independence of the Commons. From a modern perspective these are admirable objectives, but from the viewpoint of preserving the balanced constitution, they are contradictory. As the fathers of the United States constitution recognized, a balanced constitution required a system of checks and balances. So, too, was 'a Compliant House of Commons' essential, and in the period of the unreformed constitution compliance was secured through influence.55 Once more metaphor misleads. Balance in a constitution is more than a mechanistic concept; social and political activity are ingredients as well. In the United States, the system of checks and balances demands negotiations and contacts between the branches of government to make the balance effective. In England after 1688, a political ruling class dominated the elements and provided the social lubricant for the 'Matchless Constitution/56 In Canada, there was neither the institutional compulsion nor the social expectation to cooperate. On the contrary, in Lower Canada the Legislative Assembly provided an opportunity for a new, nationalist leadership to emerge to challenge the governor and Legislative Council as well as the traditional Canadian elite drawn from the seigneurs and the clergy. Durham was the most eloquent exponent of the theory of balance British North America ever had. More prophetic, however, was Number Forty-three of the Ninety-Two Resolutions passed five years earlier by the Lower Canada House of Assembly: That the constitution and form of government which would best suit this colony are not to be sought solely in the analogies offered by the institutions of Great Britain, where the state of society is altogether different from our own/ Among Durham's other major recommendations were two that contradicted official policies long pursued in response to revolutionary republicans. The Constitutional Act of 1791 had divided the territory of old Quebec into two colonies and given each a complete set of parliamentary institutions. Now these colonies were united into one of the largest governmental units in the world. Concern for institutional rigour and responsiveness, once deemed essential to avoid local unrest, had abated. Yet the size of the new colony raised just these kinds of concerns: how to represent so sprawling and diverse a territory? Certainly the United Canadas challenged a central tenet of republican theory, that size and freedom were inversely correlated. The American resolution to that conundrum - federalism - was specifically rejected in Durham's

The Search for Constitutional Balance 83 Report.57 In its place the politicians went to the people, so to speak, alternating regularly between locations in Upper and Lower Canada. This 'saddle bag system of government' came to an end when the last session of the legislature of United Canada met for the first time in its purposebuilt Parliament Building at Ottawa. The size of the new colony made provision for local self-government more imperative than ever. Durham believed that 'the utter want of municipal institutions ... may indeed be considered as one of the main causes of the failure of representative government/ 58 The absence of local government had been no oversight but deliberate policy to silence critics of established authority in the years after the American Revolution. Whether a more permissive policy would have made for a less unhappy result is open to speculation. What is known is that the Municipal Act, passed a decade after the Report and applied to the old area of Upper Canada, gave that part of the colony so robust a system of elective municipal government that at Confederation Ontario, alone of the original provinces, chose to have a unicameral legislature. For the first time in British North America, the 'problem' of an upper chamber had been solved by the expedient of not having one. In Lower Canada the institutions of local government languished. In 1750 and for another two centuries, the Roman Catholic Church asserted a dominant force, visually and practically, in every community. In Andre Laurendeau's graphic phrase: 'What remained [after the Conquest! was the cell of the parish.'59 The fact that local self-government originated in colonial statute and not in a superior enactment like the Union Act was to have long-term repercussions. The repeated call from municipal leaders in the last half of this century for a constitutionally recognized 'third level' of government bears witness to the discontent the chosen route created. Local government embedded in the constitution would have altered the relationship between levels of government and, in turn, would have expanded the range of political activity. (Some indication of the magnitude of implied change is gained by contemplating modern-day proposals for constitutional entrenchment of aboriginal self-government.) As important as what might have been is what actually occurred: that is, placing municipal affairs directly under provincial control - a relationship that continued at Confederation (subsection 92(8) of the Constitution Act, 1867) - and why: Tt preserves inviolate the prerogative of the Crown.'60 That was the pledge of the Assembly at the first meeting of the first Parliament of United Canada, and the Duke of Portland who, in

84 Part One 1795, had rejected Simcoe's scheme for appointing local officials on the grounds that they might influence or undermine gubernational power, could not have said it better. For proof that something important had happened in the area of constitutional development, it would be hard to improve on this expression of legislative solicitude for the integrity of the prerogative. There is no mystery what that 'something' was: Durham's recommendation that responsible government be introduced into the government of the colony had been accepted by the colonial secretary. At that point, cautiously at first but confidently later, modern Canadian politics begins, for responsible government is its central principle. More fundamental than the 'winning' of responsible government from Britain is the implication of its acceptance in Canada. Acceptance and then implementation of the principle signifies the arrival of a symbolic consensus in politics. Opposition continues to be heard, but it is an opposition that for the most part drives the government to observe the conventions of responsible government. With the adoption of Durham's great recommendation, Canadian politics begins to converge, at least as far as the constitution is concerned. The quest for harmony between English- and Frenchspeaking Canadians is another matter, one that drives the British North America into a federal system in 1867. But the constitutional understanding of 1840 continues to inform every Canadian polity 160 years later. Responsible government is Canada's alternative to republican government. More than that, it is her refutation of republican government. Hear Robert Baldwin, Attorney General West in 1849: 'He thought our system was the best, because it gave more regular and constant control to the popular will.'61 Yes, 'to' not 'by' the popular will! Those who sat to the Speaker's left disagreed with him, but these were still early days in the unfolding of responsible government. Its true lineaments, which would disturbingly resemble those of the old unaccountable governors, had yet to take shape. In fact, for the first part of the 18405, Canada came as close as she was ever likely to come to an American-style government; for the governor general tried to marry the new principle of responsibility to the old concern for harmony. The result was as original as it was unsatisfactory. He [the governor general] had taken a part in the political affairs of the Colony ... he had made himself a party man ... he had assumed a position which even the Sovereign herself never took, and had made himself like the President of the neighbouring Republic. He had lent the influence of his politics, the weight of

The Search for Constitutional Balance 85 his name and character to introduce Democracy in this Colony. The Sovereign never became the head of a party - the Sovereign never sat at the Council Board with her Ministers; but the President of the United States and the Governor General of Canada did so - (Oh! oh! and ironical cheers).62

The arrangement could not last; the two principles were in conflict and one must take precedence. Lord Elgin's assent to the Rebellion Losses Bill signalled that responsibility was to be the premier value. With that principle confirmed the governor general withdrew from active politics. Still, there was no manual outlining how responsible government was supposed to work. As late as 1856, A.A. Dorion observed that it took time for 'the constitution to be properly understood and worked (even) in Britain/63 Here he was speaking of the new constitution - the one that made responsibility its hallmark. At the same time he was, by inference, acknowledging the passing of the old order the one based on balance. The parallelism between the constitutional arrangements of power in Canada and the United States, which owed their origins to the Settlement of 1688 and which in their separate ways, the Constitutional Act of 1791 and the United States constitution had sought to replicate, had ended. In its place in Canada appeared a system of concentrated power leavened only by the need of those who advised the Crown to control the Assembly. At one level the leitmotif of the Assembly debates between 1841 and 1866 is that very subject, the capture of the prerogative by the politicians in power. More fundamental still is the realization that accompanies this knowledge of how the new system works: responsible government is not popular government. A reading of the debates, especially between 1845 and the mid-to-late 18505, introduces both the essential characteristics of cabinet government and reveals the shock, even alarm, expressed at their implications for popular government. 'It was/ said Baldwin in 1850, 'the prerogative of the Crown to choose its officers without explanation.'64 At an earlier date, both Hincks and Baldwin rejected the claim that 'the government should be represented in the house by heads of departments.'65 The boundary between the political and non-political or bureaucratic world would be drawn by the executive. In 1854 John A. Macdonald, then Attorney General West, ridiculed the proposition that 'this House (should) assume the administrative functions which properly belonged to the Executive.' Those who suggested otherwise were 'imitating the course of the old Puritan party of England who, in the Long Parliament, cut down the Executive's

86 Part One power and became the Executive themselves.'66 To the 'degrading' suggestion that the government not expend public money 'at their discretion/ Hincks prayed that 'no government will exist in the province when, in emergencies, will not sanction the expenditure of public money, in reliance on the subsequent action of parliament.'67 The Assembly was told more than once that the appointment of standing committees was 'an absolute departure from the practice of... responsible government,' because when committees took action they 'detached' responsibility from power. The public then wants to know 'who conduetts] the affairs of the country?'68 Taken together, these attributes of responsible government indicated that the executive intended to be in charge, an expectation repeatedly emphasized in the dispute over the meeting of parliament. To those who wanted 'set dates and fixed Rules ... laid down by law and not under the pretence of Prerogative/ the outcome, which saw the executive prevail, was more than disappointing: it was ominous. In his defence, Baldwin might say that the right to assemble Parliament was the Crown's alone and John A. Macdonald might echo his approval of that sentiment, noting as he did that if fixed Assembly dates were bequeathed, demands for fixed prorogation dates would follow, and that would have the effect of destroying the whole system of responsible government.69 Papineau was not alone in concluding that responsible government seemed 'only to be found in the ministerial instructions/70 By engrossing the prerogative, the political executive was perpetuating the pattern of concentrated power originally identified with the colonial governors. What was the role for the legislature, George Brown, among others, complained, when the ministers advanced the 'absurd idea' that they alone could originate measures? In what way was this legislature formed in the image of the mother of Parliament, where Lord Russell would not 'dare to lecture his supporters' about their individual responsibility?71 Yet executive encirclement of the legislature had begun; indeed, by 1850, it was advancing. And faithful to the metaphor, Baldwin observed in that very year that 'the ministry were appointed by the representatives of the people as watchers on the towers, to resist every attempt to interfere improperly with public institutions, and to introduce those measures which they conceive to be requisite.'72 Here was government that was visible and solid, government acting as sentinel. In the same speech Baldwin proceeded (as was by now inevitable) to compare Canada with the United States: The fact is they have no regular government there at all/ From the context, it may be

The Search for Constitutional Balance 87 assumed that he was alluding to the separation of institutions under the United States constitution and the consequent absence of the executive from the legislature. Nonetheless, it is prophetic that as early as 1850, even as A.A. Dorian was still 'apprehending' the new constitution in Great Britain, Baldwin should affix to that form of government the adjective 'regular.' By mid-century Baldwin was not alone in seeing the future, and it was because this intelligence was widespread that the last, and ultimately successful, campaign to introduce the elective principle into Canadian politics resumed. This time, the tone of the debate leading to adoption of the principle (1854) and its implementation (beginning in 1856) had noticeably changed from a decade before. Then Lower and Upper Canadian radicals had opted for an elected Legislative Council out of frustration: responsible government was still an unrealized possibility and its mechanics, if and when it came, uncertain. In this atmosphere the elective principle could be interpreted as a measure that would advance the popular will. Now, with responsible government attained, any move to an elected Legislative Council had to take that reality into account. In Lafontaine's words: '[T]he change in the form of Government had changed in some respect the face of things and made some persons doubt whether the elective principle were desirable.'73 If election conferred legitimacy, could the principle not spread and undermine responsible government with its indirect link to popular opinion? If in the 18405 advocates of the elective principle had argued for it as a liberating reform, one that would empower those without influence, in the 18503 the argument went another way - election was depicted as a procedural reform that would check the concentrated power responsible government conferred upon the executive. Here, perhaps for the first time in Canada, there is a hint of the traditional concern of classical republican theory. While far from plentiful, neither are references to the American founders, Montesquieu and the legacy of Greece and Rome rare. Each carries with it a warning about the mutability, more particularly, the degeneration of governmental forms: 'Ecoutez Madisson [sic]: "La facilite que 1'on trouve a changer les lois et 1'exces que 1'on peut faire du pouvoir legislatif."'74 If evidence were wanted, on offer was the spectacle of 'the other' republic, France, where the Second Republic (February 1848) had fallen before a coup led by Louis-Napoleon (December 1851), who then established the Second Empire (November 1852): 'In the great Democratic France,' said Cartier, 'they had tried a single House and they had degenerated into a pure

88 Part One despotism, into - the Empire.'75 The spectre that fed anxiety was the observed decline in the attendance and activity of legislative councillors in the period following the arrival of responsible government. The reality was that the new regime nullified the second chamber. For that reason 'responsibility/ as John Neilson had earlier predicted would be the case, 'was a mere farce/76 To talk of Canada's constitution as 'a transcript' of England's was meaningless where there were no estates, no social conditions similar to those in England. There was 'no element out of which to form a Legislative Council/ and the fact that one existed should not cloud the issue: 'II est vrai que nous avons un counseil legislatif, mais ce n'est qu'une seconde chambre.'77 What was wanted was 'a series of checks like those in the United States, to avoid the instability which was the great danger of all democratic governments.'78 It needs to be said that the debate over an elected second chamber was fuelled largely by opinion and emotions expressed from within the legislature of the United Canadas.79 There is no reason to think that the question had wide public support or even knowledge. Certainly, there was never any direct expression of public opinion on the subject. How then are we to account for the more favourable climate this time around? While variations on a theme might be suggested, it is obvious that the achievement of responsible government had removed a big obstacle to experimenting with elections (although, as noted above, it raised a new concern - a political variant of Gresham's Law: officials who derive their authority from election would drive out all other claimants). Nonetheless, responsible government had secured a status for the Canadian colony which in the eyes of its politicians conferred a prestige due only to a mature system. Since there were only two conceivable models - the United States and Great Britain - and since each of them had upper chambers of elevated status (while the Canadian Legislative Council languished), the acceptable alternative was to experiment with election (in fact, eight-year terms were introduced in 1856, with one-quarter of the members eventually retiring every two years). There were few opponents to the reform, although among their number was George Brown, editor of The Globe and identified in Canadian history with the slogan 'rep-by-pop' in the debate leading to the Confederation negotiations. In the debate over an elected upper house, however, Brown advanced an argument against the proposition that continues to be heard even at the end of the twentieth century: in the system of responsible government the cabinet cannot be responsible to

The Search for Constitutional Balance 89 two sets of masters. In his biography of Brown, J.M.S. Careless gives prominence to this aspect of his opposition, as well as to Brown's concern that an elected upper house could 'fetter ... the force of public opinion.'80 Perhaps, in light of Brown's preoccupation with the matter of representation, his opposition to a limitation of popular opinion is not surprising. What is surprising, since no one else made it at the time but many have afterward, is his further observation about government in the American republic: the president, he says, is 'not responsible for the discretion of his conduct [but] responsible only to the letter of the law.'81 It is a perceptive comment since it isolates one feature of republican government as it already operated in the United States - the legalistic cast to American politics which flows from the separation of powers. It was Brown's opinion, from which he never waivered, that the elective principle applied to the upper chamber was 'a Tory measure.'82 For that matter, any obstacle that distorted the transmission of popular sentiment into policy (including a deviation from the 'rep-by-pop' principle) would have earned the same disapproval. In the one study of Canadian experience at electing an upper chamber, the author concludes that the experiment failed: the quality of the elected members remained at or below the quality of those previously appointed, while fewer voters participated in election for the upper house than for the lower. On balance, it must be concluded that 'the principle of election ... did not restore [the chamber's] influence and authority.'83 One does not have to hold a contradictory view of the experiment - as does R.A. MacKay, the author of the classic study of the Canadian Senate - to see in the debate a subject of profound importance for the operation of Canada's political system.84 For in this debate Canadians came closer than at any time in their history to facing the republican option and to allowing it to exert a major influence over their actions. Here, for once, Canadian response was neither hostile nor suspicious. It needs to be said that the American republican example of the 18503 was not an ideal model for Canadians to emulate; United States senators were more than half a century away from being directly elected and, for that reason, in some ways 'a fitter parallel [was to be found] in the Senate of the State Legislatures.'85 But that consideration raised the question of federalism, and the members of the Parliament of United Canada were not ready to incorporate that dimension into the already complex question of executive-legislative relations and the respective merits of a system of fused versus separated powers.

9O Part One That would come later. In the meantime Assemblymen heard, but in light of their failure to pursue the subject further can be assumed not to have considered significant, one brief comment by W.H. Merritt, a man reputed for his business rather than theoretical acumen: Instead of conceiving this a question between republicanism and monarchy [the record noted] he considered it was really a question between centralization and decentralization.' He went on to ask, but not to answer, a supplementary question: 'Why was it that some people preferred the old irresponsible system to the present one?'86 Why indeed? Could it be that the concentrated authority of the Canadian system did not encompass everyone's idea of popular governance? Was irresponsible government, then, decentralized (or better yet noncentralized) government; and was this, more than anything else, the core of republicanism, the core Canadians would never accept? Conclusion If the complex story of Canada's response to republicanism has any single theme, it is the fear with which established authority confronted challenges to the political status quo. Regularly depicted as a necessary response to defend the prerogative of the Crown, even after the achievement of responsible government, it had the effect of distancing the Canadian system from the people it served. Popular constitutionalism accredited legitimacy to politics outside the formal institutions of government and for that reason appeared as a threat to those whose hold on power, even after 1848, was only indirectly subject to public accountability. Attempts to inject a popular element into the Canadian system won proponents mixed support. Before the rebellions an elected upper chamber was deemed a radical and subversive proposition; after the arrival of responsible government it was labelled as conservative and, paradoxically, antidemocratic, because it would stand in the way of government responding to the popular will. Established authority accepted an elected Legislative Council in the 18505 for pragmatic, structural reasons - to rehabilitate a disparaged and discredited branch of government. But the rehabilitation was to be superficial only. Never was there a suggestion that government wanted or expected opposition from the elected upper house. In composition and policies, Canadian governments of the 18505 differed significantly from their predecessors of the 18205 and before. But

The Search for Constitutional Balance 91 in one respect they shared a common sentiment, which was the assumption that only they were capable of exercising political authority. Here, we might say, was the dominant Canadian response to republican example reduced to its primary essence, and here too lies the essential contrast in the policies of the two countries created by the American Revolution.

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PART TWO

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4 Representation

Republicanism is about representation, monarchy about participation. The first part of that assertion, which is the subject of this chapter, is easier to demonstrate than the second. Catharine Macaulay argued that the origins of republicanism could be traced to a first cause: in her time, to the great revolutions of the eighteenth century. Republics, in short, were created. Monarchies, on the other hand, most particularly of the English-British-Anglo-American-Imperial variety, emerged and evolved through the sharing of power; in the process, they incorporated and assimilated previously excluded partners. From the Great Reform Act of the reign of William IV, to Victoria's 'classless' monarchy (the adjective was Gladstone's), to the 'personal union' the sovereign offered the autonomous communities mentioned in the Balfour Declaration of 1926 (or, for that matter, as symbolic head of the Commonwealth after 1949), monarchy has never shown itself to be either rigid or simple.1 Representation and participation may lie at the respective roots of republicanism and monarchy, but it would be wrong to say that they are the exclusive concerns of these forms of government. On the contrary, Canadians, for example, spend a good deal of time discussing representation questions - more now than at any period in their history - but neither in Canada nor in Great Britain nor in Australia can it be said, as it can in the United States, that the importance of representation lies in it being the source of executive power. Far from being a fount of power, representation is treated as something of a 'problem' in Canada. Nor is this a recent development, as a reading of the Confederation Debates will corroborate. One of the attractions of Confederation was the resolution it offered to political deadlock in United Canada. Under the 1867 Act, the majority of French-speaking Canadians received their own pro-

96 Part Two vincial institutions, by which they might protect and enhance their position as a distinct society, while their former Upper Canadian partners in the old Union were free to pursue the goal of representation by population as well as to acquire the North-West Territories and Rupert's Land, a combination which, in time, created a new representational threat to the historic minority. Important though it may be, then, representation is not at the centre of Canadian politics, a truth that has long fed the frustration of reformers from the country's periphery. Certainly, representation does not hold the prestige it commands in the constitutional theory of the United States, or even, in quite a different fashion, parliamentary and quasiparliamentary regimes like Ireland and France. In 1919, Irish constitutional theory (as distinct from eventual practice) 'reviv[ed] ... the old revolutionary conception of parliament as the incorporation of all governmental authority. Dail Eireann was not only the legislative organ, it was "the Government of the Irish Republic."'2 There were a number of reasons for this stress on a sovereign legislature, not least to emphasize that Irish statehood was 'self-contained and self-derived/ and owed nothing to Westminster or to the Crown. Similarly, in other instances - including the preamble to the sovereignty question put to the Quebec people in 1995, which concluded with the statement 'We, the people of Quebec through the voice of our Assemblee nationale, proclaim: Quebec as a sovereign country/3 or in a succession of regimes in France, which have reiterated their faith in a unidimensional politics of elections - the casting of a ballot is inflated into an act that is both constitutive and authenticating. Representation becomes a device for legitimating that which under a monarchy is never in doubt. Between this perspective and the English-Canadian view of the act of voting there is a lexical divide. Yet, however central representation may be to the operation and legitimacy of these other systems, its meaning in the context of American republican theory remains unique. Unique and unusually persuasive for neighbouring Canadians when they survey their own political system, for the United States constitution speaks with one voice: 'In all its parts, the representative part [is] the whole of it.'4 The American Revolution turned on questions of representation - no taxation without representation, no representation without election (that is, denial of the denial to vote and of its substitute, virtual representation;5 in its place must be representation, which was a mirror, or image, or 'portrait in miniature of the people at large') - and on ques-

Representation 97 tions associated with representation - consent of the governed, the suffrage, the size of districts, and the number of persons they contain. The result of this preoccupation was the destruction of old ideas of politics, of mixed government in which the parts embraced the virtues associated with monarchy, aristocracy, and democracy, and the substitution of one value alone: representation. The implication of that transformation, what Edmund Morgan has described as 'inventing the people,' is now so familiar as not to attract comment. Yet it should; not only did representation become the theoretical ligament for the other American contribution to modern politics - federalism - but it did something equally revolutionary in the eyes of parliamentary monarchists: it made the people supreme. And if 'separate and superior' were not enough, it also made them the 'constituent power/ However momentous that designation, it was eclipsed by the unprecedented consequences of what Gordon Wood calls 'the logic of these developments/ which was 'to take the people out of government altogether.'6 This is what republican government had come to mean for Americans, even before the end of the eighteenth century: the people not 'inside' the legislature, sharing in government, but 'outside,' watching, limiting, checking government. For that matter, the corporate idea of government disappeared altogether. The body politic, which took form, as Henry VIII once said, 'in the time of Parliament, wherein we as a head and you as members are conjoined/7 had become disembodied. From a monarchical perspective, even one so attenuated as Canada's at the end of the twentieth century, it is the casting out of government from its parliamentary Eden that appears so heretical - and threatening - in this interpretation. Where is government as protector, guarantor, sustainer? Moreover, if representation becomes the criterion and election the mechanism for its realization, there are no grounds for authority other than numbers. Arguably, the majoritarian danger implicit in this concept of republicanism as representation can be moderated by institutional means. That was the rationale proponents of the Philadelphia agreement gave for the indirect election of the president and senators, just as it was the defence they offered for the new federal system. The framers were not simply institutional determinists, however; James Wilson, for one, believed it was imperative to select 'wise and virtuous characters [to represent] the whole community.'8 The Antifederalists remained unconvinced by either argument. The literature devoted to that debate is immense and, for the purposes of this discussion, irrelevant, except in this regard: the central dispute at the founding of the

98 Part Two republic turned on the concept of representation and its implication for government. In one respect the emphasis on the primacy of representation to American republican ideas is unexpected. Commentators today talk more frequently about a 'crisis' in participation than they do about representation. The issues that excite attention are low voter turnout, even in presidential contests, and lower still in off-year elections. Concern is also expressed about the plight of the two old parties, the paralysis that has come with the rise of political action committees and the spiralling cost of elections. All of this is true, but none of it invalidates the thesis that American politics is first and foremost about representation. In fact, it is the potential for these problems to undermine the central value attached to representation that poses the greatest threat. The transfer of power to the few and wealthy would deprive the people of the historic role the American Revolution assigned them at the creation of the republic. How different is the world of representation that envelopes American republicanism from the participatory politics of Canada's constitutional monarchy. Once again, at first hearing, this language sounds strange, even false. How can participation be the central characteristic of this country's politics when individuals and groups believe that they are excluded and that Parliament (and the provincial legislatures) operate as closed shops? The arrival of the Canadian Charter of Rights and Freedoms, rooted in values that promote inclusion and participation while challenging old practices of decision making, in which authority derives from a nonpopular source, contradicts the claim that participation is as central to monarchical government as representation is to republicanism. But participation is not to be confused with openness. There is no shortage of examples to demonstrate that the franchise was manipulated in Canada to exclude some groups from participating in politics, even some who previously possessed the vote.9 Instead, participation is used here to imply sharing in government: the sovereign and the people - at least some of them - as partners in government. From this perspective government takes place inside the legislature: those inside exerting power, those outside deprived of it. The thesis about Charter groups women, the disabled, aboriginal people, who, through provisions of the Charter, have come in from the political cold - does not refute the overriding claim about the original primacy of participation. What the Charter has done is promote an additional avenue whereby groups and individuals speaking for a collective interest become part of the system; it has not changed the system itself.

Representation 99 In Canada, as in other parliamentary systems, to be in office is to live, to be out of office to die. Pierre Trudeau once said that members of Parliament were nobodies. Perspective depends on where one stands, and doubtless there are degrees of 'somebodiness'; still, a legion of commentators has described in stark terms the black-and-white world of electoral politics. The contrast is partly explained by the operation of a plurality electoral system on a single chamber in both federal and provincial politics: 'A winner-takes-all electoral system goes hand in hand with a winner-takes-all system of government.'10 The focus in Canada is on the parliamentary parties and their leaders: the whips, patronage, and the threat of dissolution enforce discipline; Canadian governments do not have terms in the correct sense of the word but politicians behave as though they do and make all their calculations in light of an approaching election; bi- or multipartisanism is rare and suspect, while competition suffuses politics in and out of the House. The bellicose world of parliamentary politics discourages the rise of a corporate legislative identity, particularly in comparatively small chambers. After the House of Commons at Westminster with 651 members (1996), Canada and Australia had the fourth and fifteenth largest lower houses in the Commonwealth (295 and 148 members respectively); few provincial and state chambers in these federations exceed 75 members. The practices of cabinet government not only isolate the parliamentary parties from each other, they also help sever the party leaders from their extraparliamentary movement. This absence of connection lies at the root of the accountability problem. Most of the political party literature in Canada notes the impotence of rank-and-file members; yet the effect on the leaders who monopolize government and opposition is equally significant, if only because the isolation reinforces that monopoly. Attempts to bridge the chasm separating the worlds of the extraand intraparliamentary parties take two forms: either individual legislators seek to escape the discipline enforced by the party whip or supporters outside the legislature attempt to subject the caucus to their directives. Neither response has brought major change to the operation or environment of parliamentary government in this century. The 'evils' the Progressives saw in Parliament and the party system seventy-five years ago, and against which they rebelled, remain. The 'Locals' of the United Farmers of Alberta may have been, as their leaders claimed, 'an integral part of the Association'; they may 'in fact [have been] the Associ ation'; equally, there may have been 'no divorcing of the U.F.A. activities from the other citizenship responsibility represented in political action';

ioo Part Two but ultimately the identification of interest between those inside and outside evaporated.11 By the time the Reform Party appeared late in the century, it was as though the earlier revolt had never happened. Writing to Jean Charest, then leader of the Progressive Conservative Party of Canada, in August 1996, Preston Manning, leader of the Reform Party, drew directly, if unintentionally, from the script of Progressive grievances and remedies: 'Reform is founded on the belief of many Canadians that our political process needs fundamental reform, that our Parliament is too partisan, too undemocratic and too unaccountable. To remedy this, we have proposed freer votes, Senate elections, recall of MPs and greater use of referendums and initiatives to bring Canadians directly into decision-making on the most critical issues in society.'12 All that was different were the issues; instead of freight rates and the tariff, Manning cited abortion, capital punishment, and constitutional reform. When Stephen Harper, heir apparent to Manning, resigned in 1997, the reasons he gave also had a good deal of echo to them: 'I'm looking for an opportunity where I'm not bound by a party line and where I can simply push the kind of public policy matters that are most important to me.'13 The only modern element in this statement was its unabashed individualism. Alienation is a term frequently used by the media to describe the electoral nonconformity of voters in British Columbia and Alberta. There is no shortage of evidence of discontent that demands exploration, but it would be a mistake to see these Western provinces as subject to a phenomenon unique to them. Observers close to parliamentarians at the centre report the same disengagement between the leaders and the led: 'Somehow there seems to be a perception in the public mind now that if you're a member of Parliament you're somehow separate and apart, that they are not either human or representing the population.'14 Nor is this a particularly recent development - it is simply more noticeable. One of the key functions of political parties, certainly in a country the size of Canada, is to act as a transmission belt between constituency and member, along which, in the language of political systems, inputs and outputs flow. This is the explanation for the ceaseless round of partisan activity aimed at sustaining the local organization; without that structure to organize the constituency members cannot be elected.15 The era of the mass political party may be coming to an end; the electronic media, the personalization of leadership, the legalization of politics and a growing fascination with courts have contributed to a decline in partisan loyalty and the belief in partisan efficacy. Over the past quar-

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ter century, C.E.S. Franks has chronicled the peculiar problem Canadian politicians face in gaining support for policies. He argues that policy creation occurs within government and without 'the dialectic of party or public discussion.' The 'burden of mobilizing consent' takes place after decisions are made.16 A number of secondary factors - the nature of recent party leadership, the strains of constitutional impasse with Quebec, the growing strength of the provinces generally - contribute to this development, but the primary condition that gives these factors weight and influence is the constitutional monarchical system, which privileges government inside Parliament in the first place. Parliamentary supremacy has fed on a fear of rivals to Parliament. If Parliament claimed the right to speak for the people, what right had others to challenge that assertion? Could not any attempt to do so be depicted as anti-Parliamentary? Whether the response took the form of repressive moves by the executive to ban clubs and societies in the late eighteenth century or court opinions in the twentieth century to strike down direct democracy proposals to compel the Crown and its advisers to share with the voters the power to enact legislation, the result was the same.17 The power of Parliament remained total; the people neither shared in it nor retained any reserve. Symbolic of this arrangement, the reserve power (as that phrase is used in Canada) belongs to the Crown, not to the people. On this question, and sounding a bit like a latter-day Tom Paine, Peter Russell has asked, 'Can Canadians be a Sovereign People?'18 The answer appears to be no, as long as parties monopolize parliamentary representation and parliamentary representation is the basis for choosing a government. In Canada at least, parliamentary parties remain hostile to innovation that will compromise that monopoly. (Examples to substantiate that claim are best explored in the following chapter, devoted, paradoxically, to participation.) These include provisions in election expenses legislation that go far beyond the publicized limit on so-called third-party contributions during campaigns, as well as attitudes toward electoral reform, the use of referendums, freedom of information, and Charter challenges that threaten to limit the extent of the prerogative. Compared with Canada, Australia, another constitutional monarchy that is a federation, can lay claim to a republican pattern. That is the proposition advanced by Brian Galligan in A Federal Republic: Australia's Constitutional System of Government. He argues that 'the real basis of the Australian Constitution was the consent of the people.'19 The constitutional proposals of 1897-8, drafted by delegates elected by the people

1O2 Part Two and then approved by the people voting directly in refendums in each of the colonies, guarantee that 'the Australian people have supreme authority.' They are the constituent power - the latent legislature, so to speak - and, as such, both Parliament and the monarch are 'subject to [their] supreme will.'20 Further evidence of popular primacy lies in the country's constitutional amending formula; for an amendment to succeed it must have the support of a majority of the people voting in a majority of the states. There is no doubt that there is a greater popular component to Australia's constitution, historically and currently, than there is to Canada's. There could scarcely be less. But does that negate the statement with which this chapter began: that republicanism is about representation and monarchies about participation? Australia might become a republic by 'regularizing' the reality of power, yet the very minimalism suggested by the act of 'jettisoning' the Crown indicates that the reform will have little impact on the operation of Australian government.21 Like Canada's, that government is characterized by discipline, secrecy, and a monopoly of power. Australia may be an illdisguised republic, but it is not a replica of the American republic. The contrast between republican concern about representation in the United States and constitutional monarchical preoccupations with participation in Canada is heightened when the differences in principle become the basis for applications in fact. Nowhere is this more evident than in the conduct of what Canadians call redistribution and Americans redistricting. If the core premise of constitutional theory in the United States is that the people exist 'separate from, prior to and in control of the organs of government,' then it is to be expected that American attitudes to voting will reflect that primacy.22 From this perspective it is understandable that scholars ascribe to voting a 'protective or defensive function'; that, in turn, voting equality has been elevated into 'something like an absolute'; and that voting power has to be distributed 'in such a way as to give adequate protection to all sections.'23 All the institutions of government - the presidency, the two houses of Congress, the electoral college (and the political parties) - were designed to give to Americans acting in a variety of capacities a single assurance: equal opportunity to protect themselves. Multiple safeguards had the added advantage of reaffirming the legitimacy of policies that cleared the sequence of hurdles created by the system. Mobilization of consensus in the United States has never been the problem Franks claims it is in Canada. In the eyes of Canadians like George Cartier in the mid-nineteenth century, the American system was a puzzle - and offered salvation. It was not based on the prin-

Representation 103 ciple of representation by population as they understood it. In fact, he said, there were 'a great many things which cannot be defended in theory but which work well in practice': beginning with the United States Senate, where it was evident that 'the minority may rule the majority ... for the good of the whole.'24 That was a convenient lesson to cite in the Parliament of United Canada, since the rancorous debates over representation stood as a constant reminder of the failure Canadians experienced in establishing consensus on the question. George Brown's rep-by-pop riposte - '200 inhabitants of Lower Canada are to have equal representation in the national legislature with 300 Upper Canadians! - and that while Upper Canada pays at least two-thirds of the taxation!' - had the virtue of concision in articulating the opposing position.25 More than a century later the United States Supreme Court had moved toward George Brown's numerical standard of representation, although not all the way. In the United States a vigorous debate continues over whether the goal of redistributing is 'representational voice' or 'electoral power.'26 Nonetheless, the emphasis has clearly shifted to such democratic preoccupations as the Value,' 'worth,' 'weight,' 'power,' and 'strength' of votes. In the process equal protection is interpreted more often in quantitative rather than in qualitative terms. Representation has become a question of numbers, and those numbers refer to people (more specifically, voters) rather than to acres or trees. In Canada, for reasons distinctively her own, numbers never ruled: vast distances, a small population in the nineteenth century which, in the twentieth century, grew rapidly in specific regions (first on the Prairies and later on the Pacific Coast and in Central Canada); and always, the large French-speaking minority concentrated in one region. Territory and people, the two ingredients of representation in the Englishspeaking world, made representation an intractable problem at the national level. It was less intractable, it is true, during the country's first century, when the government of the day and later the parties in Parliament (Liberals and Conservatives until the arrival of the Progressives in 1921) decided on the allocation of seats and the boundaries of the resulting constituencies. The first of these matters was relatively, although not completely, straightforward: between 1867 and 1946, Quebec had sixtyfive seats in the House of Commons and each of the other provinces 'as many seats as its population warranted in proportion to Quebec's fixed number'; from 1946 to 1974 the House had a fixed number of seats which, when divided into the country's total population, produced a quota which, divided into individual provincial populations, produced

1O4 Part Two in turn the number of seats each province received in Parliament; after 1974, no single rule could encompass stagnant Saskatchewan on the one hand and burgeoning British Columbia or Ontario on the other.27 The point is that during this long period, the beneficiaries of the last election determined the rules for subsequent contests. And they reached agreement not by enunciating principles or applying formulae but through bargaining. Back in the middle of the last century, Papineau had championed rep-by-pop for United Canada and cited as appropriate models 'the whole of France, Holland, Belgium and the reformed States of Germany.' The contribution of England, which some of his legislative colleagues proposed in response, he dismissed as 'formed very much at haphazard.'28 For a one-word description of the history of representation in Canada, it would be hard to improve upon that adjective with its suggestion of lack of principle. If, at the time of Union in 1871, British Columbia's negotiators could force the grant of six House of Commons seats, with the understanding that she would not lose any of them later due to the operation of the rep-by-pop formula, then British Columbia should have them. If Manitoba received four seats in 1870 but was only guaranteed that number until the next census, that was unfortunate but not unfair. If grandfather clauses, senatorial floor guaranties, one-twentieth and 15 per cent rules were necessary to stop the haemorrhaging of parliamentary representation in slow-growth provinces that a dispassionate application of the rules induced, so be it. More recently, if, after the last four censuses (1961,1971,1981, and 1991) redistributions carried out by independent commissions under the Electoral Boundaries Readjustment Act (1964) and its amendments have been suspended, ignored, and replaced by Parliament; if Parliament has changed the formula each time because current members expressed unhappiness at the operation of existing formula on new census data; and if, as a result, 'none of the [four] constituency-based redistributions to date has applied until after the last election of its decade - some seven or eight years following the census' (that is, the first election to use 1961 census data was 1968; for 1971 data it was the 1979 election; for 1981 the 1988 election; and for 1991, 1997), who can complain?29 Voter equality and equal protection are not the issue in Canada; they never have been. Instead, the concern is for adequate or effective representation. In response to the demographic and territorial expansion of the other provinces of Canada, thanks to massive immigration after 1896 and the northward extension in 1912 of the boundaries of Quebec,

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Ontario, and Manitoba, the Maritime provinces composed a memorandum on representation that stated as a principle what practice had long indicated was a fact: 'A self-governing colony was something more than the number of its inhabitants ... Representation by population, while accepted as a guiding principle in fixing the representation of each province in the Dominion Parliament, was intended to be made subservient to the right of each colony to adequate representation in view of its surrender of a large measure of self government.'30 How to square the circle? Even if numbers are no longer deemed of first importance, they cannot be ignored altogether. The Canadian way, which A-N. Morin (then in coalition with Francis Hincks) recognized more than a decade before Confederation, was to propose an alternative in which no one lost: increase the size of the chamber and give the additional seats to the areas of population growth. The slow-growth sections would remain undisturbed. The unpalatable second choice was to 'disfranchis[e] the smaller constituencies to make up a higher number of representatives in the large ones.'31 Compare this to the Amalgam Method (1974-85) which, as Courtney notes, 'was adopted with all-party support' and which guaranteed no province fewer seats than it had in 1976.32 Again, compare this solution to the Chretien government's aborted legislation (Bill C-69) that followed suspension of electoral boundaries redistribution in 1994 and which, had the Senate of Canada not delayed passage beyond its sunset clause, would have incorporated into law for the first time (but left undefined) the 'guiding principle [of] effective representation.' In the Senate a chief advocate on behalf of the bill advanced as arguments in its favour the following: This is an important measure that will eliminate unnecessary redistributions and cut costs. For example, based on the results of the 1991 census, it is anticipated that there would be no redistributions in Saskatchewan, nor in my province of Manitoba or in Prince Edward Island. This would result in anticipated savings of roughly $1 million. In addition, the bill would give those constituents living in those provinces a level of comfort with the constituency boundaries they presently have. Public criticism of the current process, highlighted by the frustration and inconvenience caused when ridings are changed for no apparent reason, would thus be eliminated. Constituents become accustomed to their ridings and, in the absence of important shifts in population, there is no valid reason to incur the cost and disruption of a redistribution. This is a perfect example of how Bill C-69 improves the current system.33

io6 Part Two Since it was the government that was proposing to overhaul the redistribution rules and procedure, its supporters (such as Senator Carstairs) might be expected to find merit in the bill's provisions. In the House of Commons, the Reform Party members of the Procedure and House Affairs Committee went even further in the same direction: the costs of representation were an ever-present theme but equally dominant was the proposition that Canadians were 'among the most overrepresented people in the world.' Canadians wanted 'a smaller House' and 'fewer politicians.' Ignorant of the subject's history, the Reform Party's solution was to cap or reduce the number of MPs.34 Yet Canadians have never agreed that adequate or effective representation is achieved by taking MPs out of the House or by forcing declining provinces to give up some of their members to growing provinces. This is a truth the authors of the Report of the Royal Commission on Aboriginal Peoples appear to have accepted. Writing about how aboriginal peoples might be represented in an aboriginal parliament, they favour a scheme that bases representation on 'the nation or peoples:' Each nation or people would have its own representative, yielding an Aboriginal parliament of between 75 and 100 seats ... Larger Aboriginal nations or peoples ... or confederacies of nations ... might have more than one representative. Addressing representation in this way would have the added advantage of reinforcing what we consider to be a fundamental value of the new relationship between Aboriginal and non-Aboriginal people - that it is a nation-to-nation relationship within Canada. The issue of what constitutes an Aboriginal nation would be resolved by applying the proposed recognition policy.35 'Resolved' only in the Canadian way of avoiding definitions and shunning absolutes. There are aboriginal nations and then there are aboriginal nations, in the same way that there are provinces and then there are provinces. Except for the Reform Party of Canada's enthusiasm for a Triple-E Senate equality has never occupied first place in the public order of Canadian political values. Raising the subject of a Triple-E Senate raises the subject of federalism, for that is the equality the proponents of the scheme are talking about - provincial equality (see Chapter 6). But can equality be so conveniently compartmentalized? Is it possible to advocate it as a principle to be honoured in relations among units of a federal state but observed in the breach elsewhere? For it is a fact that unlike the United States, in Canada equality is not the guiding principle. It is not found in the Supreme Court of Canada,

Representation 107 where by statute at least three of the justices must be trained in the civil law, nor in cabinet, where by convention provinces are entitled to expect (but on occasion do not receive) a seat at the table, and where some provinces receive more than a single seat. It is not found on the administrative boards and commissions that replicate the cabinet blueprint as to territorial representation as well as to old and new concerns for linguistic, religious, and gender balance, nor does it apply to military, which must surely have extended the principle's range in 1885, with plans to send to the Sudan a composite Guards Camel Corps, taken from regiments in each province. (The governor general reported that the proposal won approval because 'the several provinces would feel they were represented.')36 Nor is equality the guiding principle in the drawing of constituency boundaries, if by that term is meant the standard enunciated by the United States Supreme Court of 'one person, one vote' leading to Virtual equality of the populations of electoral districts within a state.'37 On the contrary, when the Supreme Court of Canada was presented with an opportunity to give its opinion - on Saskatchewan's constituency boundaries, enacted in 1989 and providing for categories of urban, rural, and northern seats with generous provisions for population disparity (6,309 in the northern seat of Athabaska versus 12,567 in the urban seat of Saskatoon Greystone) - it found that the purpose of the right to vote enshrined in Section 3 of the Charter is not equality of voting power per se, but the right to 'effective representation.' Lest there be any doubt as to the inference to be drawn from the court's opinion, it should be noted that the question had come to it on appeal from a decision of the Saskatchewan Court of Appeal, which spoke of 'no person's portion of sovereign power exceed [ing] that of another' and posited 'the idea of equality [as] inherent in the right to vote.' To one commentator, the Supreme Court's response could be interpreted as saying that 'it was possible to have too much equality if it was achieved at the expense of other factors pertinent to effective representation.' Too much equality.' Could any phrase be more unrepublican - in either the French or American vocabulary - or more Canadian! Admittedly, Americans may fall short of their goal - the multiplicity of state laws constrain the registration of millions of voters, so that on election day the United States has the lowest voter turnout of any Western democracy38 - but the United States does have a goal. It does have a theory of representation. When it comes to voter turnout, Canadians can afford to act superior to Americans - national turnout in the 70 per cent

io8 Part Two range, some provinces (Saskatchewan, for instance) in the mid-to-high eighties - but to what purpose? Elections in Canada, as in the Great Britain, are about 'finding government majorities, not representing individual electors/39 If to foreigners Americans sometimes seem cavalier about participation in the traditional sense, as in the number of eligible electors who are disenfranchised at elections, Canadians must likewise seem oblivious to their inadequacies in the realm of representation. James Bryce once said that popular sovereignty was too abstract an idea for Canadians to comprehend, and in any case unnecessary, since 'having complete control of their administrations through their legislatures, they are therewith content.'40 As an explanation for the difference between Canadian and American approaches to politics, there may be more truth to this observation than many Canadians would care to admit. Representation after all is the international norm of modern government, the index of democracy. To admit a deficit in representation is of no small importance. Yet the struggles of Canadian politics have been over responsible, not representative, government. Representative government has always had more to do with governing than it has with representation. Precipitated by a crisis in representation, the American Revolution brought Britain's first Empire to an end. With the second empire representation, as the American colonists had used that term, ceased to be the issue that had troubled them. In Great Britain the balanced constitution inherited from 1688 proceeded to transform itself as parliamentary reform gathered pace, while in British North America its development was arrested by governors like Sir Francis Bond Head, who used his office and the Executive Council to 'counterpoise' the representatives of the people. What Bond Head ridiculed as 'this smooth-faced, insidious doctrine' of responsible government became the colonists' answer to the discredited old Whig theory.41 And once it arose, the question turned from representation - who spoke or did not speak for whom - to who controlled government. Control, not voice, became the issue. This is why the drive, the imperative even, to responsible government became central to Canadian politics: British Columbia won responsible government as a condition of entry into Confederation in 1871; the North-West Territories secured it as a preparatory step to provincial autonomy in 1897; m Manitoba responsible government and provincehood were telescoped into one Act in 1869; while for Newfoundland union with Canada marked the return of responsible government (qualified, to be sure, as befitted a province), which had been lost in 1932 when the former island dominion had gone bankrupt.

Representation 109 In this discussion responsible government and local self-government may be treated as synonymous, although it is true that recognition of the first as a principle does not automatically translate into complete local autonomy (witness, for instance, the limits Lord Durham recommended to the exercise of his famous principle of government). Any difference between the two is less important than their similarities, however, since both localize power when territory and institutions make that possible. The creation of a separate province of Ontario in 1867 makes the point, as this passage in the inaugural speech from the throne of the province's first lieutenant-governor demonstrates: This day is the commencement of a new and important era in our political annals. We are met together under the authority of the British Crown to enter upon a more extended application than we have hitherto enjoyed of the principle of local self-government. For years past it has been the aim and effort of Upper Canada to secure a more direct and unlimited control over her own local affairs than was attainable whilst in legislative alliance with another Province ... This object we have now attained through the beneficent interposition of the Mother Country.42

'Unlimited control over local affairs' is a powerful and familiar theme in Canadian history. The provincial rights cause, identified in the first instance with Oliver Mowat's premiership of Ontario, is a well-documented phenomenon of the late nineteenth century. In these years Macdonald's original centralist conception of Confederation fell away to return only in the company of emergencies and their aftermath. As used in this context, however, provincial rights is too easily limited to a single perspective: federalism and its division of powers. Yet the impetus to self-government is less a product of federalism than its cause. Samuel Beer once said of the American constitution that 'the federalism [of its founders] presupposes their nationalism/43 For Canada's architects that epigram needs to be recast to read: Their federalism presupposed their localism.' For it is localism that sets Canada apart from the United States and it is localism that vitiates any possibility of American views of representation taking root in its politics. More than that, the roots of localism are fed by a monarchy that underwrites the autonomy of the provinces. Of course there are other explanations for Canada's province-centred federalism, beginning with the boundaries of its units. Beer also said that 'without the invention of the rectangle the United States would not

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exist.' There is nothing predetermined about its units, since diversity was not their raison d' etre. In contrast, Harold Innis observed that provincial resistance to Ottawa arose from 'the influence of language, religion, race, and the control of natural resources.'44 To these factors might be added distance and dissimilar immigration patterns, which reinforced the isolation of geography and culture. Yet it is constitutional monarchy that made self-government totally available within the provinces, either before or after Confederation. The creation of the American republic reconstituted the states as republican entities and Article IV, section 4 of the United States constitution guaranteed them that form of government thereafter. Confederation did no such thing: a new province like Ontario might see its control over local matters increased as a result of federalism, but for a continuing polity like Nova Scotia the outcome could equally be seen as a subtraction of power as a result of being 'swung out of their Constitutional orbit.'45 Whether Nova Scotians who argued this way were right or wrong is immaterial; the fact remains that the self-government Nova Scotia had already acquired before 1867 was perceived to be ample and self-contained. Never in a territory of the United States was the same proposition advanced. The natural progression for a territory was to statehood; with that came Congressional representation, membership in the electoral college, and incorporation into the American republic. Progression, and more importantly what that progression signified, is less evident in Canada in the matter of representation at the centre: in the last century members and Senators from the Northwest Territories appeared in Parliament a decade and a half before the creation of Alberta and Saskatchewan, just as in this century MPs were returned from Yukon as early as 1904. The imperative of self-government in the provinces compromises the sharing of power at the centre. It is not enough for provincial opinion to be expressed in Parliament: the provincial governments insist on participating in making the decisions. This is the explanation for the rise to prominence of first ministers conferences, for an amending formula the provincial governments until as late as 1982 monopolized (and still dominate), and for the perennial discord that prevents agreement on constitutional reform. Consider, for instance, the complex parliamentary trade-off in the Charlottetown Accord, which saw first ministers agree to a Senate with equal provincial representatives (six seats apiece, with one each for Yukon and the Northwest Territories) in exchange for a more faithful adherence to the rep-by-pop principle in the House of

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Commons. This was to be achieved by adding additional seats to the House, which, in turn, were to be distributed to the provinces most adversely affected by the operation of the current formula. At the same time Quebec was guaranteed in perpetuity 25 per cent of House seats. The impetus to self-government has driven expressions of federalism to Canada's periphery and away from its centre; in the process it has privileged governments over people. Part of the reason for this lies in the operation of parliamentary-cabinet government and part of it in what Tony Wright has described as 'the colonization of the representative system by the political parties.'46 Some of it, however, is traceable to influences most evident, arguably, in the provinces. There is no republican sentiment in the provinces of Canada, if by that is meant the inclination to balance the institutions of government in order to limit the exercise of power. In fact, quite the reverse is true: W.L. Morton once observed that 'democracy, as a popular sentiment, was local in its origins and attachments in Canada.'47 There are fewer impediments to selfrule in the provinces than there are at the centre: jurisdiction is unitary, legislatures unicameral (since Confederation, five have had two houses, but only two in this century, the last upper chamber, Quebec's, being abolished in 1968). The provinces are socially and culturally more homogeneous than the country at large; within their borders there are few bases for balance. Although the observation approaches a tautology, it could be said that the provinces are what the national government would be were it not for federalism. There is in Canada a unicameral mentality. That this outlook is not the product of institutions is easily demonstrated by reference to Australia's political history. There the colonies and, then, states were bicameral (five of them still are), their upper chambers monopolized by a landed class (squatters) or a plutocracy who thwarted the expression of local democratic opinion. If the provinces have provided a hothouse for democratic, and sometimes radical, sentiment in Canada, this has been less evident in the states of Australia. In fact, the creation of the Commonwealth in 1901 was envisioned in some quarters as an avenue whereby democracy might be promoted and the grip of property-owning establishments in the states loosened. The appointment of senators in Canada by governor-in-council received favourable comment for just this reason.48 If federalism was initially seen as a way of restraining local privilege, ultimately its own demise was advocated for the same reasons by the Australian Labor Party, which (yet unborn) had had no voice in federation and which preferred

112 Part Two unitary government and the supremacy of Parliament. (Opponents of republicanism today profess to see its sponsorship by Labor as a continuation of that tradition and a threat to the federal system itself.) Compared with Canada, the constitutions of the states of Australia appear almost classical in the attention they pay to allocating rights and duties, powers and responsibilities; similarly, Commonwealth electoral and redistribution practices, such as the compulsory vote, the permanent electoral roll, the monthly update of all rolls, and the conduct of redistribution whenever deemed 'fit/ mark its deviation from Canadian tradition in their commitment to 'Rousseauian democratic and egalitarian values/ In this context it is indicative that the phrase 'effective voting' in Australia was once synonymous with proportional representation.49 This is an important difference between Canada and Australia and once again it originates in the provisions these systems make for representation. In Australia the state and Commonwealth constitutions, along with the franchise and electoral laws, have to be seen in the context of a society composed of a large urban working class, a vigorous trade union movement, a significant anti-British Irish Catholic minority, and a small but wealthy property-owning establishment. In comparison to Canada, Australia was almost heterogeneous; except for Quebec, Canada was a homogeneous society, largely rural and overwhelmingly British (of the substantial Irish population, around 60 per cent were Protestant, and for both Protestant and Catholics, farming was the major occupation). The European immigrants who arrived after 1896 went west to homestead, not to organize trade unions. On the contrary, they were themselves organized by the political parties, and in the case of the Liberals, became a pillar of its twentieth-century ascendancy. Paul Romney has described these internally undifferentiated provinces as 'little republics' and pointed to provincial rights as the homogenizing agent.50 The association of republicanism with social and structural homogeneity denies American roots to this phenomenon; the city not the nationstate is its lineal precursor. Constitutional monarchy thrived in the unencumbered provincial setting. How inevitable, when Alberta's organized farmers decided to enter politics, that they should sweep the field; how predictable, when Saskatchewan's government resolved in 1921 to deflect a similar revolt, that it should use as instruments its prerogative powers (patronage and the timing of general and by-elections, for example). There was unintended irony in the promise of an Independent candidate in Alberta the same year 'to purify our political system and to ensure that the Govt of

Representation 113 Canada shall be, in the truest sense "of the people, by the people and for the people.'"51 No democratic system could have been more purely in the hands of a single force - those who advised the Crown - or less subject to the popular control. This was the Canadian way, as it was the British and Australian. Canadians admired Lincoln, they mourned his assassination, but they were not Lincolnian in their approach to government. Like 'the common Englishman' E.P. Thompson studied in his history of the working class, they were 'not so much democratic, in any positive sense, as anti-absolutist.'52 In their devotion to self-government and local interests, the provinces were far removed from the American idea of representation. At the time of the Revolution, the colonies not only created a nation of which they were the constituent parts, but they 'simultaneously' reconstituted themselves as states.53 The integration was absolute and, as time would show, irrevocable. Sectionalism has been no stranger to American life; what has been (and remains) foreign is the possibility that state governments should act as its agent. The contrast with Canada is stark and rooted in elemental differences between republican and monarchical forms of government, as those terms are understood in American constitutional and British political thinking. The distinction between the two adjectives is important, because in Canada (as in Great Britain) the working of constitutional monarchy is subject to political determination. It is not, to refer once again to Catharine Macaulay's description of republicanism, 'rigid.' The emphasis on the political places the stress where it belongs - on a preoccupation with what Stefan Collini, in an article directed to the more general subject of 'character/ calls 'the shaping power of time, with the slow, sedimentary processes of development ... customs ... [and] habit.'54 It gives prominence to the unique influence of those individuals who, as first ministers, have absolute access to the prerogative. From this perspective, politics is not about 'arrangements' or 'machinery' or 'paper constitutions'; it is about change, and movement, and progress propelled by force of character. That at least is what it was about in the nineteenth century, and the Victorian period was the seed-time of Canadian political culture. The Victorians saw change all around them - the industrial revolution, the impact of Darwin's theories on scientific understanding and religion, the expanding Empire, and, in Canada, the rounding out of Confederation. Diversity not uniformity was the order of the day, adaptation not imposition the answer. If, as Collini argues, the eighteenth century was marked by a 'language of virtue' and a belief in institu-

ii4 Part: Two tional balance to maintain it, the nineteenth century talked in the 'language of character/ the principal focus of which was improvement: 'In character discourse, the individual is not primarily regarded as a member of a political community, but as an already private ... moral agent whose mastering of his circumstances is indirectly a contribution to the vitality and prosperity of his society/55 Change the settlement pattern of the Canadas, proclaimed Edward Gibbon Wakefield, and you would improve the moral worth of the settler and release his constructive energy. The constitution and the common law were uncodified, malleable, transportable, and infinitely expandable; they and a respect for the rights of Englishmen could meet every contingency. 'Our Empire/ the young Canadian learned, was different from any past or present. It was not governed from one central authority: '[I]t is very largely an alliance of free nations, each of them self-governing, but united to the motherland by the deepest ties of affection and ready at all times to defend it.'56 Earl Grey, the governor general, told Saskatchewan's children on the day the province was born: 'The king looks to you to uphold the honour of your province in the great Dominion that is so fair a portion of the Empire. Your lives will show that [you] are ready to die, if ever the occasion should arise that you are called upon for your services.'57 The plastic quality of English society' and the natural, evolutionary progression of her institutions prepared immigrants of that society to adapt to new conditions.58 In Canada where, outside of Quebec, the settlers were until the end of the nineteenth century predominantly British, the 'condensation of character' north of the border contrasted sharply and favourably with 'the cheap races' who poured into the great cities of the United States. These recalled nothing so much as 'the Ghetto of ancient Rome.'59 The classical allusion was intended to wound, as were frequent references to American political machines, trusts, and corruption. Pro-British commentators in Canada, from Sir Francis Bond Head to Colonel George Taylor Denison, took delight in depicting this fall from republican grace, in the elevation of private gain at the expense of civic virtue. Their motivation was not malice alone. Throughout the last and for most of this century, the ruling class in Great Britain maintained a high regard for the American republic. Until Andrew Jackson's presidency, the probity and economy of American government contrasted favourably with Britain's 'Gothic' institutions, then undergoing reform. And the English liked to take credit for the positive features of the American constitution since, so went the argument, the English system of colonization had permitted the free development of local legislatures in the

Representation 115 first place. Not only did they continue to admire American institutions even after Jacksonian democracy had marked an end to the federalist era, as a reading of Bryce's American Commonwealth reveals, but, to the frustration of the ruling class in British North America, officialdom at home continued to assume that 'a republican government is better suited to the disposition of the Canadian people than the British Constitution/ This opinion, Bond Head curtly responded, was in 'error.'60 And Bond Head was right: Canadians were not republican in the sense of the American founding fathers or in any other way that invoked restraint or balance or a mixture of governing elements. They, and more particularly their leaders, were, as they are now, motivated to acquire power and to vanquish opposition. Except as discussed in the last chapter, the Glorious Revolution, the Settlement of 1688, and the Whig constitution made only a slight impact and, then, not a permanent one on the development of Canadian constitutional thought. Neo-classicism is a central theme in the arts and politics of the United States; it is a subsidiary theme in the study of Australian life and culture; it is almost totally absent in history of Canada.61 Imperial populism was at its height when the provincial rights movement scored its major successes. The sentiment it engendered strengthened localism or, at least, combined with localism to moderate national sentiment.62 The result was a strange brew, one part parochial, two parts international. Canadians were taught that as 'citizens of the Empire [they] should ... have respect and toleration for the opinions of others.' All were British subjects, whatever their origin. Democracy was more than 'a form of government/ it was 'a way of life/ The people were not governed by a written constitution but by something better: 'their own will' made 'more quickly known' in a system where elections were becoming referendums on which one of two parties should govern.63 In the provinces the fusion was complete. The executive dominated the unicameral legislature (Nova Scotia's second chamber was abolished in 1928; Quebec's not until 1968) and the first minister, his ministers, and the Crown's representative. Politics in the constitutional monarchies of the provinces was about participation as partnership, just as it was at Westminster or Ottawa. And, as there, who participated was the prerogative of the premier. Invariably that meant farmers; often it included, as deliberate policy, industrialists, Roman Catholics, and, maybe, francophones, Irish Catholics, or Protestants, depending on the province in question. Over the years the list was expanded to include a broader range of ethnic group representatives and, in time, women. Participation was by invita-

n6 Part Two tion and almost always the first qualification for eligibility was membership in the governing party. These were the rudiments of the integrative institutions that once sustained a particular kind of democracy which Michael Atkinson says is now disappearing.64 Here was elite accommodation by another name. Elite accommodation still persists. The indictment brought against it, as Franks has observed, is that it is no longer effective. Where once the elites educated and the public reciprocated with their support (or opposition), now consent (or opposition) is mobilized elsewhere. These new politics, over which governments and parties generally have reduced influence, take place outside the accommodative structures that took form in the legislature of United Canada. Rather than being integrative, these processes are viewed as aggregative, with the activity confined largely to the world outside Parliament. That this development is a threat to the familiar patterns of governing is evident to all, as the defeat of the Meech Lake Accord in 1990 and the Charlottetown Agreement in 1992 bear witness. That governments are aware of the threat but uncertain how to respond is equally clear: expressions of support for local decision making and the institutions of direct democracy have never been so frequent as in the past decade. Participation, not as partnership in the sense in which the term is used in this chapter, but as a challenge to the exercise of executive power whose legitimacy flows from the Crown, may yet make Canadians a sovereign people - of sorts. If it does, it is not to be interpreted as the triumph of republicanism. Legitimate power cannot be placed in the people at large without a reconception of what representation means in theory and in practice. Representation is the core value of American republican thought because, as Thomas Paine observed more than two centuries ago, it creates 'a system of government capable of embracing and confederating all the various interests and every extent of territory and population.'65 In the American republic, law-making is apportioned among a score of institutions and groups; in a constitutional monarchy such as Canada, it is monopolized by Parliament (or, in the provinces, the legislatures) which is controlled by government. That is why representation is central in a republic and why participation as partnership with the Crown is at the heart of politics in a monarchy. While received practices of governing may be under strain, the assumptions that sustain them continue to be confirmed, and from unexpected quarters. Late in 1996, the Royal Commission on Aboriginal Peoples released its long-awaited Report. A mammoth enterprise deal-

Representation 117 ing with the history, culture, economy, and life of Canada's aboriginal peoples, the Report is metaphorically bound together by the theme of renewal: the need to rebuild aboriginal nations, to revitalize aboriginal culture, and to reclaim aboriginal nationhood. Self-government in the form of 'effective' governments in a position to renegotiate 'new relationships with the other partners of the Canadian federation' constitutes the objective set out in the (relatively short) section of the Report devoted to 'governance.' The exclusion of aboriginal people from the institutions of established government, first by denial of the franchise until 1960 and then largely by self-exclusion from a system many Native people see as 'settler' contrived, is not relevant to the concern of this study.66 What is germane is the road taken in the past decade to end the exclusion. Three approaches have been suggested, of which the recommendations of the Royal Commission are the most recent. In 1991, another royal commission (the Lortie commission), on electoral reform and party finance proposed the creation of Aboriginal Electoral Districts (AEDs). These would be established where a sufficient number of aboriginal people registered to vote in a designated district. Since the provisions of the redistribution process would apply, except for the superimposing of AEDs on existing federal constituencies, only eight AEDs were to be created. The proposal sought to marry recognition of 'differentiated citizenship' to 'full participatory status in Canadian state institutions.'67 In 1992 the Charlottetown Agreement spoke favourably but generally about reforms to promote aboriginal representation in the House of Commons. By contrast, it specified guaranteed representation for aboriginal people in the Senate. Again, the principle was to bring aboriginal people into existing institutions. The recommendations of the Royal Commission on Aboriginal Peoples mark a break with the earlier philosophy and proposed implementation. Starting from the premise that relations between aboriginal and non-aboriginal peoples should take the form of one nation to another, the royal commission proposed 'a third chamber of Parliament/ which would 'provide a means for the Aboriginal peoples of Canada to share in governing the country, while at the same time acknowledging [their] distinct interests, cultures and values.' Significantly, the Report accepts, 'as a matter of course,' 'the pivotal role of the prime minister ... to launch and nurture the renewed Aboriginal/Crown relationship.' The validity and practicality of these three proposals are not at issue here. Each attacks the problem of aboriginal representation in a different

n8 Part Two way. Yet all share one thing in common: the assumption that representation is tantamount, as the Report says, to having 'a permanent voice in processes of national decision making.' This appears self-evident and it is - in a system of constitutional monarchy where sharing power with the Crown through its advisers is the pre-eminent pattern of government. Aboriginal people are acquainted with less visible patterns, such as working through the bureaucracy, to achieve influence. In a constitutional monarchy, the bureaucracy - the civil rather than the public service - is part of the executive body that governs the state but which for legal purposes is called the Crown. Government in Canada takes place inside Parliament (or a legislature). Because it does, and because the process is to filter and refine opinion as it moves from House to caucus, to cabinet, to first minister to sovereign's representative, it displays a coherence and a sense of purpose sometimes found lacking in legislation produced in a system such as the United States, where representation outside, in the form of innumerable interests, presses unceasingly on the institutions the constitution has created. As early as 1849 Canadians had become aware of the difference and found the resulting conflict on display in Washington distasteful as well as subversive of the public interest: Tn Canada, on the contrary, there was no such distinction of interest. What affected those of Hamilton, affected those down here. Quebec and Toronto had common interests, and the head would not say to the hand, or the hand to the head, I have no need of thee.'68 This was a strong message to express in a Parliament which, although formally united, represented a people culturally divided. Notwithstanding the slave-owning states and the succession of compromises needed to bridge the division between north and south, the United States offered no comparable contrast. Yet Parliament then and later, after Confederation, operated so as to disguise this fact. Parliament was the supreme authority; until the adoption of the Charter of Rights and Freedoms it was the only authority to speak for the nation - it was 'the nation in essence.' That description was accepted without question as an accurate assessment of Parliament in Great Britain, but even in this instance, when it was used by Sandford Reming in 1889 to describe Parliament in Canada, it was understood to capture the necessary quality of that institution, too. Still, at its very heart there was a flaw: Parliament cannot, in the nature of things, result in producing a national assembly in which every individual elector may be fairly represented and his voice

Representation 119 heard. As a matter of fact, under the existing system, it is not practicable to have in the elective house every part of the nation represented: some parts must necessarily remain unrepresented. Such being the case, the problem which science may be asked to solve, is simply this: to devise the means of forming an elective assembly which practically as well as theoretically will be the nation in essence.^

A century later political science has not solved the problem Sandford Fleming set for it. Why it has failed and whether it could ever be expected to succeed at the task, are matters for another time. In any case the significant point about the article is the problem it poses rather than the answer it seeks. The problem for constitutional monarchy and for parliamentary government in Canada concerns representation. That is so because the focus of politics in this system is to participate or share in power which, in contrast to the United States, does not flow from the legislature and, ultimately, the people, but resides in the Crown and has over time become subject to the advice of the political executive.

5

Participation

American republicanism was depicted in the previous chapter as rule from outside, constitutional monarchy as rule from inside. The legitimacy of governmental institutions in the first instance depends upon the adequacy of representation structures, in the second upon the share of Crown power held by other parts of Parliament. A fundamental difference between the two forms lies in the orientation of the people to institutions of government. Republicanism posits an engaged public, not just (or even primarily) at elections, which come at regular intervals, but in between as well. If a republic truly signified 'REPRESENTATION from the PEOPLE/ it had to be a continuous affair. 1 By contrast, responsible government was assumed from the outset to mean monopoly control by the political executive, and that necessarily excluded both the monarchy and the people as rival sources of executive authority.2 Both posed threats that had to be mastered, which is why Canadian politicians learned early to dominate Parliament and the constituencies through the instrument of disciplined political parties. The place of the people differed in these two systems and so too did attitudes about the worth and desirability of public participation. If there is one stereotype of American democracy, it is the intense, pervasive activity of the republic's citizenry; this is a characteristic noted by visitors from the time of de Tocqueville to the present. In part it is a function of American federalism, for federal government there is about more than a division of power. Daniel Elazar argues that in the United States it is instinctual, 'extending] into most areas of human relationship, shaping American notions of individualism, human rights and obligations, divine expectations, business organization, civic association, and church structure as well as their notions of politics/3 In part it

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is also the result of the separation of institutions, which abets federalism's goal 'to decentre power.'4 Every student of politics is familiar with the culinary metaphors of marble- and layer-cake federalism (the American system the first, the Canadian more nearly the second) and the engineering allusions to the multiple cracks and entry points the American system of separated institutions offers (so many places to bring pressure in Washington, so few by inference in Ottawa). In the United States participation is not confined to executive and legislative institutions but extends beyond into the public sphere - through courts and recognition of legal standing, through advocacy groups, through the media, and more: The dominant American ideology [believes] ... that the public good will most likely be achieved through an aggregation of the assertion of narrower interests.'5 It was never the theory of the republican constitution, as it was in parliamentary politics, that 'the right of electing representatives exhausted the rights of the people in the wider sense; [that] once elected, the house acted for and as the people.'6 The privileges and immunities of a member of Parliament, the protection from pressure that came with office, and the expectation of permanence through several sessions (consider the difficulties once associated with a member's resignation; contrast them with calls today for resignation because of a member's stand on a single issue), each is explicable in light of the pre-eminence attached to parliamentary office. Recall is statutorily prohibited and has been since 1920, for reasons essentially the same today as when they were expressed in the first session of the first legislature of United Canada in 1840: ... This Bill [was] unconstitutional ... the hon. gentleman ... had given a pledge to his constituents ... that he would resign when they required it. This would, indeed, be something like reversing the monarchical order of proceeding under a Representative system, for it places the power of calling a new Election in the Constituencies, and not in the Crown ... This was not the practice of the British Parliament, nor the principle of the British Constitution; and at a time when we were entering upon new principles, and an untried path in Parliamentary Government, we ought to be cautious in casting down those ancient landmarks by which only perhaps could we hope safely to prosecute our course.7

What Aneurin Bevan described as 'the morality of the ballot box' confers immense authority on electoral results; at the same time, it denies comparable legitimacy to other political acts. The ceremony of election (national and provincial) is a ritual in which the vast majority of Canadi-

122 Part Two ans participate and the results of which even more honour. Aside from the occasional newspaper editorial, there is no movement in Canada to reform the electoral system, although it is the case that most governments who win a majority of legislative seats cannot claim a similar proportion of the popular vote. Electoral reform has never been more than an elite interest. Thus when a political party, even a minor one, publicly advocates reform of the existing plurality system by introducing some proportional element, the proposal warrants attention - especially when the reason advanced for change is to strengthen political parties, most particularly the governing party, by making them more representative. That was the context in which Ed Broadbent, a former leader of the New Democratic Party, proposed a temporary addition of fifty seats to the House of Commons in 1980. These seats, divided equally among the five regions of Canada, would be allocated according to the popular vote in the regions and thus act as a small corrective to the bias of the plurality system. It is immaterial what opinion one holds of proportional representation in general or of this particular variant. But for the purposes of the present discussion, it should be noted that the rationale offered for change was the opposite of that advanced by John Stuart Mill, the bestknown proponent of proportional representation. Mill argued that proportional representation would return a Parliament in the image of the electorate. Broadbent, on the other hand, sought to increase the legitimacy of the national government by awarding it seats in areas of the country where it had been denied members under plurality voting. (In the 1980 election the Liberals won a large majority of seats in the country but not one in Saskatchewan, Alberta, or British Columbia.)8 Of course his concern was not for the federal Liberals; he wanted to ensure a government truly national in composition, one that included ministers from all parts of the country. Elections in Canada may not be sacred affairs but they are intensely serious ones. In the wake of their results governments take form, governments which, after election day, will encounter few institutionalized restraints on their power and which the public have minimal expectations of success in opposing. Here, perhaps, is one explanation for the oft-cited deference to authority that some commentators claim distinguishes Canadians from Americans. Or, at least, once distinguished them; new research on forms of protest behaviour and Canadian orientations to them indicates a less passive population today than in the past. While Canada is not alone in reflecting this trend, the reversal in attitudes it traces is striking.9 It is

Participation 123 tempting to suggest that the Charter of Rights and Freedoms may have provided new avenues to challenge authority and that a decline in deference is one consequence. That proposition will be investigated below; for the moment it is the relationship between deference and participation that requires elaboration, since at first glance the values they embrace appear to be contradictory. That deference is a key ingredient in Canadians' self-image is widely asserted in popular as well as academic literature. American social scientist Seymour Martin Lipset has long commented on this feature of Canadian life and contrasted it with American attitudes. In the Continental Divide, published in 1990, he enlists as corroborating witnesses Margaret Atwood, Peter Newman, Sondra Gotlieb, and Pierre Berton, who depict a Canadian national character that is amiable, modest, moderate, and deferential.10 More fundamental than the national character itself to an understanding of Canadian society are the influences it is claimed have shaped it. For instance, in a series of Tetters to an American friend/ Pierre Berton uses the visit of the Queen to Ottawa to sign the Constitution Act in 1982 as an occasion to explain the nature of Canada. Describing the date, 17 April 1982, as 'Constitution Day,' he depicts its significance as follows: 'We've cut our ties with Europe and we're officially independent; our Queen says so.'11 But that is ceremony; what, he rhetorically asks 'Sam' (the American), is the reality behind the circumstance? What makes Canada different? 'Why are our streets safer than yours?' 'How come nobody owns a gun?' 'Why didn't we have a revolution, like everybody else?' The refrain about Canada as a safe haven, where 'assassination is unknown ... the laws are respected - religion is revered,' predates responsible government. Coda to these peaceable attributes is the absence of deadly weapons; early in the nineteenth century Francis Bond Head and others boasted that 'the bowie knife is not to be purchased/ 12 The arguments and comparisons advanced then are repeated a century and a half later by proponents of stronger gun control laws in Canada. A still more basic question is what difference do these differences make to Canadian and American attitudes? In Berton's opinion their impact is substantial: Canadians 'do as they are told/ Americans 'do as they please until the rules are needed; then they form a committee, elect a chairman and abide by the decisions of the majority.' 'Canadians/ he says, 'have endured too much authority. Americans have suffered from too little.' Berton's observations are neither original nor uncommon. That is why they are important to this discussion, along with the fact that he is a best-

124 Part Two selling author in English of popular books about Canada. The subtitle of the book discussed above, A Personal Exploration of Our National Character, is a leitmotif for much of Berton's work, and it is one with familiar features: law, order and strong government. These are not the ingredients of republicanism, nor is the Canada drawn here 'the unripe Republic' D'Arcy McGee once feared, in the sense of its being 'an unbalanced democracy ... founded on a low and barren utilitarianism [lacking] a counterpoise.'13 Quite the reverse: law, order, and strong government personified in the Mounted Police and symbolically linked at every stage to the Crown - provide an effective check on popular impulse. An examination of policing in Canada is beyond the focus of this study, but it is not unrelated to it. More specifically, policing and political participation are interrelated subjects and, once again, constitutional monarchy, with its emphasis on control at the centre, stands in contrast to the principle of diffusion that permeates republican rule. Policing is a centripetal force in Canada but a centrifugal one in the United States. Berton suggests that the majesty of the law coupled with its impartial enforcement by the incorruptible Mounted Police go far toward explaining the orderliness of Canadian life. To these considerations might be added the respect and almost proprietary interest Canadians demonstrate for the welfare of the Mounted Police. Image and self-image become intertwined in this particular bond between police and people, as witness public criticism of a contract the RCMP signed with Disney Enterprises to market police memorabilia.14 As with the Crown itself, symbolic references to the Mounted Police - at home and abroad - contribute to placing the police in the distinctive institutional category that Berton (and others) suggest. But it would be a mistake to leave the discussion at this point, because it would omit what is unique about policing in Canada and what sets this country apart from those with which it is usually compared - the United States, Great Britain, and Australia: It has always intrigued me that Canadians were so willing to depart from the British and American models of very decentralized police organization. In many respects, although by no means all, our approach to policing resembles more closely that of the continental European countries, not only in its greater centralization but in a willingness to grant more power and authority to the police. Some outside observers of Canadian society have seen this approach arising from a generalized deference to authority in the Canadian national character. I think it can be more convincingly explained by an examination of how our police institutions came into existence.15

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The structure of the police affects the nature of participation - its organization, incidence, and outcome. And lest it be forgotten, the effects are felt by the police as well as the public. Consider, first, that the North West Mounted Police (1885) and the Royal Canadian Mounted Police (1920) were created by the central government to deal with civil unrest in a region (in fact the same region - the West). In the former instance, the occasion was the Kiel uprising in what is now Saskatchewan and, in the latter, labour unrest that culminated in the Winnipeg General Strike, 1919. Central direction of the police in 1885 made sense since the West was a virtual colony of Ottawa; in 1920, it still made sense to the government and a majority of the opposition (including a majority of the Progressives), who expressed concern about agitation and subversion from abroad. As a wartime measure in the First World War the provinces were forced to assume their own policing, but gradually all, with the exception of Ontario and Quebec, withdrew from this responsibility. The Mounted Police provided federal as well as provincial policing services and the effect, in short, was to nationalize policing in Canada. The lack of symmetry in policing and labour disputes which, as a result of judicial interpretation fell, with few exceptions, to provincial jurisdiction, is an unexplored matter. It is a theme of some of the most explosive incidents in Canadian labour history, as for instance the organizing drive of the International Woodworkers of America in Newfoundland in the 19505 and the On-to-Ottawa Trek and its repulse in the Regina Riot of 1935. There is another way in which the organization of police, again at the national level, affects participation. It is infrequently acknowledged in Canadian political science that 'the RCMP were an important element in the great expansion of the Canadian state in the early twentieth century/16 Police acting as researchers and investigators rather than as law enforcers affect participation, since in a country the size of Canada these centralizing activities function as a counterweight to the federal division of power. But it also affects participation in another respect: within the central government police power is concentrated. The contrast, which happened in the United States, saw each government agency 'establish its own police or investigative agency.'17 The implications of the contrast for bureaucrats, interest groups, parliamentarians, and the public are the same: less opportunity to exert influence. But this is only to scratch the surface of policing and its effect on participation in Canada. Consider, again, that while 'all Canadian law enforcement officials ... are appointed, many of those in the U.S. are

126 Part Two elected/18 Election is an 'entry point' into the political system, appointment is not. To election might be added the formation of police unions and the organization of police associations who press for public policy changes (for example, to parole and sentencing practices or, again, to gun control laws). The contrast presented by American practice is predictable and conforms to the noncentralized nature of American politics generally. Interestingly, one of the few studies of police practice in Canada suggests as explanations for the difference between this country and its neighbour: 'the Canadian characteristics of trust in government, respect for authority, liberalism, and a more phlegmatic national personality/19 Phlegmatic is unappealing in sound and misleading in description. Once again the context is comparative, with American political behaviour predicated as the standard. The significant point is not that Canadians are less active than Americans in matters political, although that might well be true if it were ever possible to devise a reliable gauge to determine the matter, but that when they become engaged the focus of their energy is concentrated in the legislative forum. There is a certain truth to the claim that the Canadian Charter of Rights and Freedoms has modified that generalization, but only to a degree; in principle and in practice participation in Canada remains what it has always been: Parliament-focused activity. Historically, and excluding the question of federalism, there has been no concept of the constitution separate from Parliament, and no concept of the people separate from the constitution. Canadians could never say of their country, as Brian Galligan has said of Australia: '[It] is properly a federal republic rather than a parliamentary democracy: the people rule through a constitution that is the basic law of the regime and incorporates the checks and balances of such a constitutional system with a federal division of governments and powers/20 In the absence of what Louis Hartz calls the 'simple democracy of the American common man/ Canadian democratic consciousness faltered either because it became entrapped in 'anti-British nationalism' or proBritish imperialism.21 Nor did the frontier score the victory here that it did next door. Macdonald early acknowledged the contrast, citing the evil effects on land tenure of primogeniture in Canada (abolished in 1851) and their absence in the United States, which enjoyed 'the safety valve of the West/22 To the extent that the frontier was a democratizing device in Canadian life, the frontier in question was American, although its 'back-wash,' said Arthur Lower, proved neither as negligible nor as unrecognized as that term might suggest:

Participation 127 Responsible government should not be taken as an advance, as that is the normal condition of British subjects; but every improvement since that was conceded, is a step towards the United States ... Our municipal system is taken from the Americans; we have only improved it a little by adding the County Council. Our school system is American; and our currency and decimal system are taken from them. Our system of public roads, and the laying out of public land, with its settlement, are American. Our federal system of government is confessedly American; and so is our election by ballot.23

That assessment appeared more than fifty years before the publication of one of the still surprisingly few comparative studies of the two North American democracies, William Bennett Munro's American Influences on Canadian Government. Munro retrieves the theme and then raises it to the level of principle: 'One might, perhaps, generalize/ he says, 'that in the government and politics of Canada most of what is superimposed is British, but most of what works its way in from the bottom is American.'24 This is an intriguing supposition, particularly in a discussion devoted to participation, and there will be occasion to return to it later. It may be enough at this point to raise as a possibility that the alchemy of Canadian politics negates or transforms populist-inspired influences; neither primaries nor leadership conventions proved any threat to Canadian political parties.25 That participation, high or low, was parliament-centred did not necessarily mean that it was restricted, only channeled. That it was monopolized almost from the first by political parties did not mean that it was designed to be ineffective, only controlled. That the parties took as their primary function the integration of the nation rather than the development of policy did not mean that expression of opinion was unimportant, only secondary to a higher cause (national unity). In few countries do political parties set such high standards for themselves. It is really no exaggeration to say that parties run the political system, particularly in the sense that they set the rules by which others (as well as themselves) must abide. John Fraser, the first Speaker of the House of Commons elected by secret ballot (1986), has written that 'there would be no parliamentary system without them.'26 With regard to elections, it is the parties that decide on the laws that will apply: the length of the campaign, the size of a candidate's deposit (and under what conditions it will be forfeited or returned), the details of any regime to reimburse candidates for election expenses (including amounts and eligibility criteria), limits (if any) on candidate and party

128 Part Two spending, access to radio and television (the single most important electoral medium) through allocation of free and paid time, and much more. The parties that reach agreement on these questions are those in the House of Commons, and until the 1993 general election that meant the Liberal, Progressive Conservative, and New Democratic parties established the rules for all candidates. These were the parties that tailored Canada's intricate system of election expense reimbursements and spending controls, which came into effect in the 19705. The purpose of the reforms was to promote citizen participation in politics but in a distinctively Canadian way - by strengthening political parties. A tax credit system designed to favour small donations was introduced to encourage individual contributions to the parties and thus broaden their popular base, while reforms to limit campaign expenses (for example, free-time broadcasts and party identification on the ballot) were intended to reduce the cost of elections. In the new system control and participation were directly related: an increase in the first, it was assumed, would lead to an increase in the second.27 For its reform Canada's federal electoral regime borrowed heavily from other jurisdictions, especially Quebec, but in design it was homeproduced by an ad hoc committee of representatives of the three parties and from the office of the chief electoral officer meeting in camera. Although secrecy may have been essential to reaching agreement, it became the focus of criticism, especially after amendment to the Canada Elections Act prohibited third-party advertising by individuals or groups who supported or opposed a particular candidate or party during an election period. While the proponents argued that 'equality, openness and participation' would result, the National Citizens' Coalition (an advocacy group committed, in its words, to 'the defence of our basic political and economic freedoms') and later the Reform Party labelled the amendment 'the gag law' and depicted it as 'unfair, antidemocratic and totalitarian in nature.' Reform Party critics went further, claiming the amendment 'protect[edl the vested interests of the three old-line parties and the ruling elite.'28 Their challenge (in fact challenges, since two versions of the restrictions on third-party spending have come before the courts) proved successful. In 1984, an absolute prohibition was struck down by a lower court in Alberta and in 1996, the Alberta Court of Appeal upheld a lower court judgment against a thousand-dollar limit on expenditures. In both instances the test was whether the provision constituted, in the words of the Charter, 'a reasonable limit' on freedom of expression.

Participation 129 The judiciary found quite the opposite; in 1996, for instance, the appeal court ruled unanimously that 'one is led to conclude that the original aim or purpose of this legislation is to ensure that third parties cannot be heard in any effective way and that political parties are entitled to preferential protection/ Noting that the election law also provided for an eighteen-day blackout period at the beginning of a campaign (and for the last two days before the vote), during which no one might advertise, the court further stated: 'A manipulated communication system favouring the political parties is ... one of the evils from which the constitutional guarantee provides protection.'29 The second judgment, like the first, went unappealed to the Supreme Court of Canada. Yet as important as the architecture of elections is for Canadian politics and as interdependent as are its myriad rules and regulations, a future decision by the Supreme Court of Canada to sustain the reasoning of the Alberta courts is certain in its effect to go far beyond the electoral system. First, it would refute the privileged position that parties claim for themselves in Canada's political system, beginning with electoral rules long encased in a carapace of partisan self-interest. (In 1988 when a registered party sought to participate in the leaders' televised debate, the Supreme Court of Ontario responded that 'it is for the leaders of the various political parties to decide ... whom they want to debate and when, and on what terms.')30 Second, the challenge will come in the form of a higher law of 'fundamental rights and freedoms,' whose restriction, said the Alberta Court of Appeal, can 'never be justified. In this controversy over money and elections, for that is what the issue turns on, each side claims that its approach will promote participation. Yet the position of each is the polar opposite of the other: one says control liberates, the other says it suppresses participation. Would the absence of controls open the door to citizen activity or would it offer an opportunity few would be in a position to take? These questions go to the heart of Canadian politics; they are also fundamental to a conception of democratic politics. What is the orientation of the citizen to be? Where, indeed, is the citizen to be - inside or outside the structures of government? This is more than a theoretical question: Jane Jenson has argued that 'Canada is suffering from a democratic deficit' and that the 'third-party spending question' is a symptom of the 'diversion of representational capacity from the federal party system to alternative sites.'31 For most of the country's history electoral politics was the forum for participation and political parties the instrument. There were excep-

130 Part Two tions, like the suffrage and temperance movements and the farmers' organizations, but eventually they too found a voice within the existing parties or formed new ones. These organizations and the nonconformist churches were actually kindergartens for later politicians, who learned the arts of public speaking and debate within their confines.32 There was another exception - the sacred right of the subject to petition Parliament. Although petitioning was much older than political parties, it was in decline even before Confederation, largely as a result of the harsh judgment it received from party critics. In language still used a century and a half later, they disparged the 'manufacturing of public opinion' and indicted petitions on the same grounds as they were later to dismiss referendums and plebisicites, that is, as being subject to manipulation by special interests: 'A few persons of sufficient wealth, who were interested in a particular measure, met together, in a back street, and then they set the press in motion, and so an agitation was got up with great facility, insolently dictating to members of Parliament.33 To distinguish popular from official politics was once a false distinction. It is no longer so, as Jensen's observation illustrates and as the following comment by a witness of the Green Party before a parliamentary inquiry into election law testifies: The real problem I have with the whole thing [election expenses] is the separation of the politics from the government, the administration of justice and everything else.'34 Rules determine more than who gains access from outside, however; they determine how politics are conducted inside Parliament. Just as in the first instance they specify criteria to be met to register as a political party, so in the second they define a recognized political party in the House of Commons (or any provincial legislature) and with it eligibility to receive allowances and privileges.35 Of course all legislative bodies operate according to rules, but the rules under consideration here are not those involving procedure; instead, they relate to questions of status, the political equivalent of legal standing in court. Furthermore, they exclusively concern parties and are the exclusive concern of parties. In this sense rules of access and rules of standing enfranchise and legitimize political parties. And in a system where parties successfully claim to speak for those outside, rules assume a determinative significance seldom acknowledged. Among their influences is to contribute to the stringent party discipline that envelopes Canadian legislatures. If parties act as a transmission belt between the constituencies and Parliament, then someone (invariably the leader) must consolidate and interpret that public opinion. Structural reasons alone make the alterna-

Participation 131 tive - allowing individual members of caucus to chart their own course of action - impossible. Critics like David Kilgour, a Progressive Conservative and later Liberal member of Parliament, talk of the 'legislative hollowness problem' that results from tight discipline.36 Members are not given enough to do - they languish - when compared with Congressmen, whose oversight of the national administration and whose resources overshadow the purpose and prestige of the Canadian MP. 'Lobby fodder' is the demeaning phrase critics employ, and there is no doubt that loyalty to party is expected to be their first obligation. Whether the Congressional model is imitable or enviable is another question. Some American scholars argue that the executive oversight role admired by their Canadian counterparts occurs at the expense of fulfilling the legislative representation function the United States constitution expects of Congressmen. The same scholars have suggested that the confusion of roles feeds frustration with Congress among American voters and leads, for example, to proposals to limit the terms of representatives.37 Even if imitable, how enviable is this activist model? Do critics of discipline away from Parliament Hill share the enthusiasm of critics on the Hill for this type of reform? Evidence suggests the contrary: that they are not driven by a desire to renovate executive-legislative relations - to return to 1688 and all that but rather to remedy what they see as geographical inadequacies in the representation system. The historically ineffective Senate as a house of regional opinion dictates that the Commons must not only be the chamber that enforces responsibility but also the one that satisfies the expression of regional concerns. Yet party discipline silences dissent within the ranks in the chamber and in the committee rooms. Notwithstanding its expression within the secrecy of caucus, the public believes regional opinion goes unheard or, worse, unnoticed if it is voiced. Western Liberal members of Parliament forced to defend party policy that is locally unpopular - the National Energy Policy or, over the years, bilingualism - exemplify the problem. Party control that extends outside of Parliament and into the details of elections and even into nominations - the leaders must sign nomination papers (one consequence of distributing public funds to selected candidates) and Jean Chretien hand-picked fourteen candidates in 1993 and again in 1997 in order to prevent interest groups from challenging incumbents' - is not going to relax its grip on candidates once elected.38 Infrequently, and on what are deemed issues of conscience (capital punishment being the classic instance), free votes are allowed. That means a

132 Part Two defeat of the government will not be treated as a matter of confidence leading to resignation and possible dissolution of the House. The confidence convention itself, whereby the government may treat any matter in just this manner, is yet another form of control on participation. Do not these written and unwritten rules limit participation in the same way that party discipline silences dissent? That is one interpretation, the same interpretation that sees control of third-party spending during campaigns as an unreasonable limit on freedom of expression. In constitutional monarchy, the political executive (the cabinet) controls the formal executive (the Crown); as a consequence the advice that reaches the Crown is unambiguous. Policy preferences that have political executive approval encounter few obstacles en route to becoming law. Speed and coherence are features of its legislative output. So too is breadth of perspective, for the reasons already cited: partisan unanimity trumps expressions of regional diversity. Despite Canada's national unity problems, policies emanating from Parliament and regulations originating with the executive and its bureaucracy display a strong national focus (too strong, the provinces traditionally say). The role of the civil service as a branch of the executive in a monarchical system and the implication of that relationship for the question of participation should not be ignored. The orientation of government to the people and its command of Parliament and the Crown subject the bureaucracy to its will more directly and more completely than in a republican constitution of separated powers. "On Her Majesty's Service' is more than a symbolic phrase. Kenneth McNaught once wrote that 'Canadians are taught to feel insecure whereas, in fact, they are far more secure than their American counterparts.'39 The occasion for the comment was the implementation of the War Measures Act in 1970; the Americans, he believed, did not have the 'self-assuredness' to do the same even had they comparable legislation. More than a question of self-assuredness is at issue here: the way policy emerges in the Canadian government, the constrained role assigned to public opinion, the confidence that comes with total discipline, the singular command of the civil service - these distil a national viewpoint more assuredly than is found in the diffused and fragmented world of Washington politics. This is an estimation of their system of government Americans themselves acknowledge, especially when comparing it to a parliamentary system. It has spawned admiration for the latter, from Woodrow Wilson in Congressional Government (1885) to the Report of the American Political Science Association's Committee on

Participation 133 Political Parties, Toward a More Responsible Two-Party System (1950), but it has produced no reform.40 Here, as in Ottawa, envy is no stimulus to imitation because change is impossible without abandoning the institutional structures set down in the constitution. That truth has been acknowledged many times, though perhaps never so exactly as in a review of Walter Bagehot's second edition of The English Constitution, which appeared in the North American Review in 1874. In his famous essay Bagehot took the parts of the constitution the Victorians had inherited and made them a whole. The fact that he did this just at the point (1867) when parliamentary government was evolving into party government has led some critics to say that he embalmed a dead constitution. Perhaps he did, but few noticed. Instead, Bagehot became and remains the 'inventfor]' of the constitution, one which people had failed to 'recognize or apprehend' before he wrote about it.41 The late-nineteenth-century sense of what a constitution was in a parliamentary monarchy, of what its written and unwritten and efficient and dignified parts signified, find their source in him. (A century and a quarter later, it requires an effort of will to think of how the constitution was perceived before Bagehot, that is, in the era which saw the achievement of responsible government.) Nowhere is this influence more evident than in his discussion of the five functions of the House of Commons: electoral, expressive, teaching, informing, and legislative. In each he draws comparisons with Congress and in each Congress emerges the inferior. It is in expressing the national will and informing public opinion that Gamaliel Bradford, the American reviewer, acknowledges Parliament's indisputable superiority. Bradford decries the pernicious effects of congressional committees for their susceptability to local pressure and to lobbyists. Bad as these characteristics were, there was worse: Those who make the laws have nothing to do with the execution, and those who execute them have nothing to do with the making; and ... there is nobody in our Congress who represents or can speak for the whole country.'42 Parliament saw the country as a whole and through Parliament's behaviour the country saw itself as a unity. The introduction of party discipline may have damaged the sense of reconciliation these words convey, but it did not destroy the image or reality entirely. Not even in a country as vast or as divided by geography and culture as Canada; notwithstanding the problem Canadian governments currently experience in mobilizing consent for their policies, Parliament speaks for and to the country. On free trade and capital punishment in this century, on the

134 Part Two Criminal Code in the last, and on scores of issues in between, the national focus to legislation prevails. The difference between the congressional and parliamentary systems is so marked as to negate the influence of the federalism they hold in common. Rather than bridge the differences, federalism reinforces them. Parliament's expressive and teaching functions may be realized to the full in a country territorially and culturally more homogeneous than Canada, where one man's nation may be another man's region. The disparity in size and influence of the provinces is so great that Ontario and Quebec, which to others appear as overweening regions, are unto themselves almost nations. For those on the Prairies or in the Maritimes, national policy too often seems to enjoy that designation because it emanates from the government at Ottawa. True or not, the issue has less to do with Parliament and constitutional monarchy than it does with the scale of the federation. As the next chapter will discuss, the Antifederalists in the United States believed that an extensive republic was an oxymoron, because whether republican or not in constitution 'the extremes ... will, like Ireland or Scotland, be drained to fatten an overgrown capital.'43 Participation in a parliamentary system is, in language little heard today, about people petitioning not instructing members; it is about government listening and then taking initiatives for which they are responsible; it is (or was until very recently) about popular politics being confined to the institutions government devises. From this perspective participation is a limited affair and those who ask for more are unreasonable. So it was in the mid-nineteenth century: The extension of the suffrage, the registration of voters and the increase of the representation, and the surrender of the Legislative Council from the nomination of the Crown, [these] were unblushingly denounced as no evidence of sincerity in the Crown.' Were the people of Canada, cried the Commissioner of Crown Lands (Rolph), 'of all the people in the world, alone thankless, querulous, impatient and unjust?'44 Making adjustments in the emotive language, as befits the report of a royal commission, the Royal Commission on Electoral Reform and Party Financing (1991) raised the same defence of electoral politics a century and a half later but, this time, emphasized the vehicle of participation, political parties: The Commission consistently treated the activities of "interest groups" in electoral and non-electoral politics as one of the causes of the parties' difficulties.'45 Viewed from outside, the politics of parliamentary government are

Participation 135 the politics of constraint. Rules predominate. The result is a system in which participation appears stylized and mediated. Yet at the same time that it excludes, it accommodates. In an article the subject of which is communicated by its title, 'Why was there no Marxism in Great Britain?/ Ross McKibbin discusses several answers to that question, but it is his comments on the structure and culture of British politics that attract attention here.46 On the one hand, he argues that 'by emphasizing the play-element in politics and the rules of the game the sphere of political action was severely circumscribed; anything outside the rules was necessarily unlawful.' On the other hand, those who played by the rules not only found themselves legitimated but by their action discovered that they legitimated the rules of the political system as well. Rules may liberate as well as dictate; they may encourage as well as discourage participation. If one were to believe school texts, such as Citizenship and Character Formation, originally published in 1932 and in its fifth edition in 1946, there was a parallel between the household and classroom virtues of endurance, courage, loyalty, honesty, and cooperation, and the rules of society, or in The Canadian Citizen (1923) between 'the ideal of citizenship land! fair play, justice and square dealing for all people.'47 This was 'the game of life/ one still being played several decades later, according to the Chairman's Foreword in the report of the Citizens' Forum on Canada's Future, where Keith Spicer describes bilingualism as 'practical fair play for all citizens using the two major working languages.'48 The analogy between sport and politics, especially when the forum is parliamentary with its disciplined ranks of players, offers much possibility for invention.49 It would be misleading to press the metaphor too far but, equally, a mistake to ignore the powerful weapon that observance of the rules provides. It helps to explain how an avowed separatist could become leader of the official opposition in Parliament following the 1993 election. In a well-known passage from his book The Canadian Identity, W.L. Morton wrote that 'because Canada is a nation founded on allegiance and not on compact, there is no process in becoming Canadian akin to conversion, there is no pressure for uniformity, there is no Canadian way of life.'50 The case of Lucien Bouchard presses Morton's model of disinterested loyalism to the limit, although not for the first time. Those who signed the annexation manifesto of 1849 and who held executive office under the Crown lost their jobs, but their sympathizers in the legislature retained the right to espouse the same cause, a privilege Hincks, for one, took pride in: 'Would any person from Can-

136 Part Two ada dare, under similar circumstances, in an American House of Representatives, to propose the annexation of one of the United States to this Province? In what state of the Union would an Englishman be allowed to get up in Congress and advocate the annexation of that State to the Crown of Great Britain. In no other Legislature in the world would any one venture to attempt such an outrage/51 Political parties are the prime, but they have never been the exclusive, mediators of participation in Canada. In the beginning there was the organized farmers who for a time after the First World War entered politics as an electoral organization and in some provinces actually formed governments. As well, a range of church, trade union, business, and non-professional associations (the National Council of Women and its provincial councils are a documented example of the last) made yearly representations to government.52 Other groups maintained clientelistic relationships with the bureaucracy of appropriate departments. Historically, however, interest-group activity was deemed to be weak in the Canadian system because political party discipline was strong. Compared with the fertile fields offered by congressional committees, lobbyists who came to cultivate parliamentary committees encountered stony ground indeed. While this is a broad-stroked political canvas, its details do not alter the picture it presents of participation dominated by political parties. Still, it is a depiction that requires elaboration if not qualification. When in power political parties are more than electoral organizations they are the engine of government. Through the use of patronage, in the form of appointments and grants, they promote participation. That is the premise that lies behind proposals to appoint individuals from previously ignored or under-represented minorities.53 Similarly, in the appointment of royal commissions and especially in drafting their terms of reference, government recognizes and promotes designated groups. In the mid-1960s, women and linguistic minorities were the focus of two royal commissions: on the Status of Women (RCSW) and on Bilingualism and Biculturalism (RCBB). More recently, the Royal Commission on Aboriginal Peoples (RCAP) has brought the same degree of attention to Canada's First Nations. In these and other instances in the last half century, Jane Jenson argues that royal commissions have 'contributed to the way that we subsequently conceptualized our interests and collective identities, whether based on nation, class, gender or citizenship/54 Monique Begin, executive secretary to the RCSW, extends that claim to importance by adding that the very structure and processes of the royal

Participation 137 commission transformed the structure and processes of existing women's groups in Canada. They moved from playing 'altruistic service roles' to 'a new women-oriented mission;' and because of this change, in situ so to speak, social programs relevant to women 'developed faster in Canada than in the United States/55 From the perspective of this chapter, the significance of these estimations of royal commissions lies not in their influence on the behaviour of groups or the perception of self, but in their orientation to people. Royal Commissions may no longer 'imitate the rule-governed institutions from which most of their members were drawn,' but they have not disavowed that lineage either.56 Royal commissions may blur the boundary between official and public, they may even carry the inside to the outside, but they do not dispute the distinction or undermine it. This is true even with a body like the Berger inquiry, which produced the Report of the Mackenzie Valley Pipeline Inquiry (1977). Credited with encouraging 'a new level and kind of participation,' the Berger inquiry was one of the first to fund public intervenors.57 Over time funding became institutionalized, that is statutory, in some jurisdictions, thus giving 'those affected by projects the ability to challenge them effectively, by putting their resources on par with companies and the government.'58 Yet in this instance, as in the parallel but much more costly policy of government patronage of interest groups, the persistent practice of authority inside taking and retaining the initiative prevails. Those who at first sight appear to be autonomous outsiders are pulled across the boundary into the official realm. If political parties have acted historically as instruments of accommodation in Canadian politics, government funding of interest groups, in the words of one scholar, has had the same effect: 'Social movements are absorbed into "normal" politics.'59 Structured and restrained participation does not prevent vocal and, even, organized protest to public policy; it does discourage the mobilization of opposition at election time through anything resembling a political action committee (PAC), that is if PACs in Canada were permitted to spend money on behalf of candidates, a freedom they are to date denied. Attempts to breach the parliamentary citadel held by the party battalions have largely failed. As Munro rightly observed, these assaults invariably borrow from American example. Predictably, whether in the form of nomination primaries or as Taw-making by the people' through the use of initiative and referendum, the experiments aim to extend participation by broadening the popular base of politics. In Munro's Ian-

138 Part Two guage, this influence 'works its way in from the bottom;' in the language of this chapter, it comes from 'outside/ Primaries failed to take root in Canada even among staunch critics of the disciplined old parties who created new parties. Direct-democracy legislation had more success, particularly in the first two decades of the century in the four Western provinces. The provisions of the legislation varied from jurisdiction to jurisdiction, although the content of each was the same - to empower the people to become participants in the making of law. Denounced in Manitoba by Conservatives 'as a form of degenerate republicanism/ legislation from that province (the Initiative and Referendum Act, 1916) was found to be ultra vires by the Judicial Committee of the Privy Council on the grounds that it 'affect[ed] the position of the Lieutenant-Governor as an integral part of the legislature, and ... detracted] from rights which are important in the legal theory of that position/60 At issue was whether the lieutenant-governor could be compelled 'to submit a proposed law to a body of voters' instead of to the legislature (that is, the initiative) and whether he was powerless to prevent its coming into effect if approved by such voters (that is, the referendum). The Judicial Committee said that there may be no 'abrogation of any power which the Crown possesses through a person who directly represents it/ and with that opinion ended Canadian experiments in self-executing plebiscites and referendums. For most of this century, popular votes have been no more than advisory in their status. This does not mean that governments may refuse to take their results seriously; it does mean that, once again, governments retain the initiative to decide what they will do. The people's voice remains a mediated voice. At the end of the twentieth century, and not only in Canada, the referendum has returned as a popular device to counter public cynicism and criticism of government. Again, as in the century's first decades, this call is heard more clearly in the West. Saskatchewan, Alberta, and British Columbia have by statute provided for all or some of the following: categories of legislation to be submitted to the people for approval; recall of elected members of the legislature; and the introduction of an initiative process (in British Columbia), which, if its terms are met, requires the legislature to act.61 The degree to which these responses meet or promote the desire for public participation in the political system is an open question. Certainly legislation of this type, as well as consultative exercises like the Citizens' Forum on Canada's Future or Consensus Saskatchewan, possess the potential to frustrate as well as satisfy this desire. Consensus Saskatchewan, a pub-

Participation 139 licly nominated body of one hundred persons, produced 'A Blueprint for Saskatchewan/ based on more than a hundred meetings in communities across the province. The premier of the day, Grant Devine, concluded from the report's findings that the public believed governments to be big and inefficient, closed and unaccountable. In reply, he promised more free votes in the legislature, provision for plebiscites and referendums, greater decentralization, and 'election' of the province's senators. The leader of the opposition labelled the whole enterprise, 'an absolute abdication of leadership.'62 Referendum in other than a direct-democracy context is the only form of participation available in national politics. And even then it is only consultative; in other words, there is no popular component to the constitutional amendment process in Canada analogous to that found in Australia. The national unity concerns that have dominated political party organization and strategies equally affect assessments about referendum voting. There have been three national referendums: a prohibition plebiscite in 1898, the so-called conscription plebiscite of 1942 (to free the government from an earlier promise not to introduce military conscription for overseas service), and the referendum on the constitutional agreement reached in 1992 and embodied in the Charlottetown Accord. In each the outcome in Quebec deviated enough in size or direction from the vote elsewhere to underline a popular division normally disguised by constituency returns in a general election.63 Notwithstanding the caution governments display toward national referendums, the failure to resolve the constitutional controversies of the past decade has led Canada to a position where she can no longer avoid them. The interpretation placed on the failure of the Meech Lake Accord - insufficiently inclusive - and the precedent of a popular vote on the Charlottetown Agreement give substance to the portrayal of 'participation in the constitutional arena as a democratic right, like the right to petition in electoral politics and in the legislature.'64 The language of direct democracy, past and present, recognizes the inside-outside distinction. In the 19905 the outside world is the one where, in the words of Preston Manning, leader of the Reform Party, 'the common sense of the common people' rules, and if the Reform Party were to form a national government that imperium would hold sway in 'the development of public policy through direct consultation, constitutional conventions, constituent assemblies, national referenda, and citizens' initiatives.'65 Despite the participatory theme common to these activities, Manning identifies himself and his party with 'the

140 Part Two reform tradition in Canadian politics/ The party's constitution, adopted at its founding meeting in 1992, lists, among others, as representatives of this tradition: Joseph Howe, Louis Lafontaine, Robert Baldwin, Egerton Ryerson, Georges (sic) Cartier, John A. Macdonald, George Brown, Louis Riel, and F.W.G. Haultain, along with 'leaders and supporters of the Quiet Revolution in the Province of Quebec/ Missing from the roll are names usually identified with popular democracy in Canadian history: Gourley, Papineau, and Mackenzie. Manning's understanding of the reform tradition deviates in one crucial respect from its standard description, which by any definition must include responsible government. By contrast, he appears to see the executive as separate from the legislature: in a letter to the Commons committee on procedure he requested that committee to 'recommend a procedure whereby Parliament may petition the Governor-General for the removal of a prime minister who fails to uphold the Constitution of Canada/66 This misperception is not his alone, however; the Citizens' Forum on Canada's Future quotes individuals who say: 'We elect people to represent us to government/67 The reformers of the tradition Manning claims broke the grasp of the elites who comprised the Family Compact and the Chateau Clique and prepared the way for responsible government. That part of the history is true, but there is still a disjunction between the teller and the tale. Baldwin and Lafontaine are the 'fathers' of responsible government because they are not the apostles of popular democracy. Manning's proposals to 'participatize' Canadian politics are more radical than he allows, for he wants to make Canada what it has never been - a unified, national, and unhyphenated country. Whether that is a feasible or desirable project is immaterial to this discussion. What is important is that the language Manning employs - what might be called Canada's second political vocabulary - reverberates with distrust of government and bureaucracy, of special interests and the old political parties, and of the Charter. Reform has discussed proposals that would see voters, through referendums, 'override' the Charter of Rights and Freedoms.68 In contrast to a mediated politics that views parties as central to government, Reform champions unmediated politics which, by definition, deprives parties of their raison d etre. In the tradition of grassroots political movements, Reform displays a 'profound unease with the principle of representation/69 Thus, whatever affinity the Reform Party may display with American direct-democracy movements, in its own way it remains as far removed from that country's republican tradition of 'REPRESENTA-

Participation 141 TION from the PEOPLE' as the system it says has betrayed the people and which it seeks to replace. There has been a country tradition in Anglo-American political thought since at least the eighteenth century, that is, a tradition suspicious of institutions of government. Thomas Jefferson's agrarian arcadia is only the best-known setting for its expression; George Brown's Grits spoke the same language a century later ('Give the government as little to do as possible, and that clearly defined'), and the Progressives and Social Credit some decades after that,70 In fact, since Confederation the country tradition in Canada has become synonymous with regional protest: John Diefenbaker's Progressive Conservatives employed some of the same rhetoric. It is convenient but it would be a mistake to portray the Reform Party as the latest keeper of the tradition. The core of its critique is not regionally specific: Misrule is rife in society generally, the economy and the constitution - all is in crisis, and direct not mediated instruments of accountability are required to set matters right. Reform proposes new forms and heightened levels of participation, and for this reason its analysis is deemed 'alien' by those in power.71 Alien or not, Reform's critique interjects a discordant note into a system in which government historically has viewed the people as a rival and the expression of opinion outside of political parties as less than legitimate. The gap has widened further with the arrival of the Charter and 'the phenomenon of "constitutional minoritarianism" [whichl reflects the new constitutional status and identities that the Charter has conferred on racial minorities, women, official language minorities and other minority groups.'72 Thus it is possible now to speak of participation in Canada from three perspectives: empowerment of a rights-conscious citizenry, the Reform view of undifferentiated citizens, and the traditional assumption of citizen activity mediated through political parties. The orientation that Reform proposes constitutes a radical break because it perceives the citizen exerting effective popular control over government from outside the sphere inhabited by government. Here is a powerful contrast to Canadian assumptions about the role of the citizen and government. But the contrast carries less conviction than it would were it advanced in the context of a theory of politics that explained the purpose of participation. Is it educative, as some republican theorists have argued? Is it rehabilitative, or is it a corrective? There is no sense of government as an institution and no sense of politics as an activity, let alone an essential activity (a belief that informs every one of the Federalist Papers). Quite the reverse; the Reform view echoes the words of an

142 Part Two anti-royalist tract from the period of the English Civil War: 'In the event of fundamental disputes arising among the three elements of a mixed state, the king could not be permitted to decide the issue ... "In this case, the Appeale must be to the Community, as if there were no Government." '73 'As if there were no government' - that sentiment sets Reform apart from American republican thought just as sharply as does its hostility to entrenched rights, which it sees as in tension with the freedom of the citizen.74 In the era of rights litigation recognition by the Charter is as important in securing access to redress as advocacy by a political party was at an earlier date. The discretion implicit in either remedy is a principal source of complaint for Reform Party members and explains their commitment to citizen-based or -driven institutions. Parliamentary reform is more than the preserve of a single party, although regardless of the source the diagnosis and the prescriptions remain almost identical. A 1994 Conference on Re-inventing Parliament, co-sponsored by the Canada West Foundation and the Department of Political Science, University of Lethbridge, employed the same emphasis as Reform, referring to 'deeply rooted problems currently plaguing ... government 'and advocated the same responses: more free votes, changes to the confidence convention, a 'larger role in the policy process' for legislative committees, electoral reform, provisions for recall, and citizens' initiatives.75 What all of these remedies share in common is their claim to inject the popular will into a political process. In a system which, between elections, historically denies institutionalized expression of that will, which sees it as bordering on the illegitimate, this is nonetheless a disturbing claim. Reform's opponents say that politics are a continuous affair and the instruments Reform advocates awkward to handle and dulled with too frequent use; more than that, they argue that consultation under the present parliamentary regime is right now a continuous affair, via polls and committees, constituency meetings, and elections.76 Still, the fact remains that parliamentary politics are more about managed than participatory moments; the initiative rests always with the elected (even, on occasion, with the appointed) official and never with the elector. Initiative, referendum, and recall are American direct-democratic practices borrowed by Canadians long before the Reform Party appeared; they are not, it must be emphasized, the substance of direct popular power. Nor are they to be confused with the 'republican moments' that American theorists see as critical to transforming the formal structures of government.77 Participation outside the legislature or

Participation 143 the governmental sphere altogether is the gauge of the strength of republican spirit. It is sometimes argued that the Charter has become Canada's participatory supplement. Entrenched rights and constitutional minoritarianism offer some evidence for making the claim; nonetheless, the logic of the argument is more involved than either critics or champions of the Charter sometimes allow. A recent study suggests that 'Bills of Rights matter but only to the extent that individuals can mobilize the resources necessary to invoke them through strategic litigation.'78 Legal mobilization is a function of the interrelationship of three 'components': rights advocacy organizations, government sources of funding, and the legal profession. Enough has already been said about the prominence of government agencies and government-funded organizations not to be surprised at the activity of both in or their contribution to legal mobilization. The Women's Legal and Action Fund and the Court Challenges Program heighten participation generally and legal participation in particular, but they do this not as autonomous, non-governmental 'outside' bodies seeking redress of government but as client agencies.79 The Canadian features of control and restraint remain. The effects of the Charter may not be as profound as claimed. The reason why is the even more profound transformation of the legal community in numbers and scholarship. An intellectual as well as a legal mobilization has occurred, and not only because of the Charter. It did not require the birth of the Charter to appreciate the contribution individual litigants could make in common law systems. The Persons Case (1929) stands as witness to the utility of the judicial system in promoting citizen participation (and, in this instance, status). While there is no doubt that the Charter has augmented the resources available to women, aboriginal leaders, and other recognized groups, there is also no doubt that for centuries the common law offered an important route to check the executive. There is a danger of seeing participation in a parliamentary system only as an electoral phenomenon; at the founding of the National Liberal Federation, Vincent Massey, soon to be that body's first president, opined that 'the individual can only find true self-expression through a sound electoral system.'80 It is important to recognize that there are other routes to participation, of which law is a principal example. Nor is legal activity to be defined only as the seeking of rights; the enforcement of laws generally is an avenue of citizen participation.81

6 Federalism

The previous two chapters looked at representation and participation. This chapter looks at these subjects again, only this time in the guise of federalism. For the modern federal design, conceived at Philadelphia, took the form it did in response to demands rooted in concerns about representation and participation. This is not to say that the federal scheme the Framers agreed upon allayed all fears - the anti-Federalists rejected any claim that it did. It is to say that even the scheme's opponents concurred with the object - enhanced participation. With that as the goal, debate turned on the manner of representation required to achieve it. The Federalists believed the answer lay in a union of republics (what Vincent Ostrom has labelled as a compound republic), the anti-Federalists in a confederated republic.1 The Federalists won the argument, and thereafter republicanism, participation, and federalism were deemed an indissoluble relationship. Such a relationship might have been thought necessary in the environment of the United States, but it was less than even a causal relationship elsewhere. In Canada, the second continental federation, federalism required neither republicanism nor a commitment to participation to take root. As one historian has written: 'It was many years before the idea of union became even tenuously linked to the virtues of bringing government closer to the people/2 Practical not popular sentiments drove the British North American colonies as they searched for a solution to the French-Canadian 'problem/ opportunity for greater status within the Empire, and a device for forcing open American markets or, conversely, for protecting colonial industries. In the country of its origin federalism might be celebrated as a precondition to republicanism - 'an achievement of the political genius that rendered American politics per-

Federalism 145 manently extraneous to British/ 3 In Canada its introduction and development followed in consequence of the prior needs of parliamentary government in a constitutional monarchy. The result of that innovation was not a compound republic but a compound monarchy composed of a score of unitary governments. The institutional resistance of the provinces and, even more, of the centre to incorporating the federal principle is nowhere more evident than in the continuing failure to reach agreement on the structure and purpose of the Senate of Canada. Recent scholarship in Australia suggests that the marriage of parliamentary government and federalism need not have this consequence. Brian Galligan argues that 'Australian federation entailed the ... transformative act of a sovereign people. In this constitutionalising act the people of the colonies reconstituted themselves as a federal polity, creating themselves a national people while preserving their State communities ... [Tjhere can be no doubt that the people are sovereign over both the new Commonwealth Constitution and the old colonial constitutions, which were fundamentally changed by being incorporated in, and limited by, the new order.'4 The election of delegates to the Federal Convention that drafted the constitution, the referendums that preceded its adoption, and the referendums that are an integral part of the amending provisions today give substance to the claim that the Australian constitution rests on the consent of the people. Another political scientist, Campbell Sharman, concurs: 'Australia's indigenous experience of government,' he says, 'is enshrined in such institutions as bicameralism, federalism, and entrenched constitutions ... Australia is a compound republic.'5 Galligan goes further and says that by the time the Commonwealth was created the 'dignified' parts of the constitution, in the sense in which Bagehot used that term, were legitimated by 'republicanised' 'efficient' forms of government. In other words, in Australia Bagehot's reasoning was turned on its head. To a limited degree, J.G. Bourinot advanced a comparable argument in Canada late in the nineteenth century; he maintained that 'the fundamental principle of popular sovereignty lies at the very basis of the Canadian system.' As a last resort it was always possible to 'appeal from the legal to the political sovereign' through the exercise of the prerogative of dissolution.6 But the difference - and it is a crucial one - between the analysis Galligan and Sharman offer of Australian democracy and Bourinot's depiction of Canada's popular base lies in the institutional (indeed, constitutional) requirement for consultation in the former federation and its discretionary use as regards dissolution or referendums in the latter.

146 Part Two Bagehot had written that Great Britain was a 'disguised republic/ and Bourinot echoed the sentiment if not the word in his evaluation of Canadian politics. But the republic of this conceit is not that of the United States or of theorists such as Galligan. For that latter republic federalism is an essential component, and of it Bagehot said nothing. Less than nothing, for in his very few allusions to the compound nature of the republic he caricatured its features. The electoral college had degenerated so much by the mid-nineteenth century, he said, that it and, more importantly, the selection of president and vice-president were 'the choice of the wire-pullers/ That the Framers would not have recognized the electoral college a century on is no doubt true, but that in its transformation the college reflected the operation of the imperatives of federalism is also true. Bagehot ignored this and every other feature that might suggest the national government at Washington was not a central government. Thus Bagehot is no guide to federalism and, for that reason, a suspect critic of republicanism. What then is the source of Australia's republican stream and, more to the point, why does it not flow through the Canadian political garden? In short, how does one explain this difference between Australia and Canada, both federal, both parliamentary, and both colonial in origin? That there is a difference is abundantly obvious: not only is Australia better equipped constitutionally, it is more disposed politically to contemplate the possibility of a republican future. Thus Australia serves as backdrop to the discussion of republicanism in the context of Canadian federalism. Nonetheless that topic first emerges in a locale more like Canada than anywhere else in the world - next door, in New England and the mid-Atlantic regions of the United States. American Federal Theory The central question at its founding was how the United States would provide 'the stability and security that republics were known to put at risk/7 Educated in the classics and familiar with the history of the early modern European republics, the leaders of post-Revolutionary America knew the dangers that confronted them. The Federalist Papers confirm that their authors found a solution through constructing 'a national polity ... that [was] geographically extensive and socially diverse/ In Federalist No. w, James Madison offered what is now accepted as the classic explication of liberty secured as a consequence of scale: 'Extend the sphere and you take in a greater variety of parties and interests; you make it less probable

Federalism 147 that a majority of the whole will have a common motive to invade the rights of citizens.' Not Thomas Jefferson's league of small republics but a national, compound republic was the route to safety. Canadians (and Australians) know about the problems geography creates for government; they are not acquainted, however, with the simultaneous challenge of mastering territory and politics. Australia resulted when six colonies that occupied a continent became a country. Canada expanded across half a continent as its central government rounded out the federation. In each instance government stability preceded territorial incorporation. The experience of the United States was different and to that difference may be attributed a large part of the distinctiveness of American republicanism. The era of the Articles of Confederation was marked by uncertainty: for instance, few texts fail to mention the economic and political impotence of the Congress. Nonetheless, for the purposes of a discussion of federalism, and particularly when the perspective adopted is not American but Canadian (or Australian), the most dangerous threat to note was the jurisdictional controversy among the original states over the Western lands and their resources.8 The details of the various disputes are unimportant; what is important is that they were presented in a context in which there was no national government with the authority required to adjudicate the claims and where the state governments were scarcely more secure (one of the features of the Canadian and American federations is that present at their creation were politicians with long experience of self-government). The United States constitution did more than provide for the institutions of the three branches of government; it founded the first modern federal system and, with it, recreated the states of the Union (the verbs most frequently employed to explain this act are 'reconstitute' and 'reconceive'; the favourite adverb is 'simultaneously').9 The point requires emphasis, since after 1787 the states owed their legitimacy to the United States constitution. They had no prior claim to recognition based on historic, collective, or popular identity; rather, their security lay through Congress in 'the mutual recognition of the legitimacy of statehood.' More fundamental still, in accepting that recognition the American states forfeited 'the essential prerogatives of sovereign statehood.' Congress successfully claimed control of the Western lands on behalf of the nation; later they reappeared in the 'new status of territory' and, eventually, in a 'mechanical [and] automatic way' as states. This process, says Peter Onuf, 'debasefd] statehood.' The process had no equal in the Canadian federation. Whether the

148 Part Two Canadian custom of changing the terms of union in light of the negotiating capacity of each potential province is more elevating, compared with American practice, is open to question. Whether American practicality in this regard is yet further confirmation of Catharine Macaulay's previously quoted description of republican government as one of rigid simplicity is a possibility. What is certain is that in the matter of federalism, Canadian governments conducted themselves after Confederation as the Colonial Office had before: 'No model of colonial government could be vindicated on the principles of political philosophy. "All that can be said for them is that they are as good as Parliament will sanction and the colonists will accept."'10 The admission of Rupert's Land and the North-Western Territory provided the first occasion for demonstrating Canada's atheoretical approach. The parliamentary resolution requesting British transfer of the territory spoke of 'the formation therein of political institutions bearing analogy ... to those which exist in the several Provinces of the Dominion.' David Mills, speaking for the Liberal opposition, attacked the Macdonald government for failing to be more specific about the content and form of territorial status: 'He thought the resolutions should express on what principles we intended to govern it; whether or not we were to organize territorial governments like those in the United States, so that the territory to be organized, after acquiring sufficient population, should have the right to have a certain number of Senators in the Senate Chamber, and certain representatives on the floor of this House." The question is of more than historical interest since, at the end of the twentieth century, there is still no consensus on how a territory becomes a province. The Constitution Act, 1982 subjected, for the first time, the admission of new provinces to the consent of seven provinces with 50 per cent of the country's population; the Meech Lake Accord raised the barrier to unanimous provincial approval; and the Charlottetown Agreement sought to go back to the pre-1982 custom of creating new provinces by Act of Parliament following consultation with all existing provinces. Neither the federal idea nor its practice in Canada were rooted in republican concerns about representation and participation. The bilateral negotiations over admission and, later, over better terms (conducted by partisan leaders) precluded the repetition in Parliament of what occurred in Congress, that is, the states acting 'collectively to recognize and uphold [each other's] claims.'12 The end to constitutional

Federalism 149 apprenticeship in Canada was a discretionary act; in the United States statehood followed automatically once a territory's population reached sixty thousand persons. The American experience with federalism reinforced the principles of republicanism because federalism offered 'a multiplicity of public spaces wherein citizens [couldl exercise their powers/13 The Whearean view of federalism as a system of coordinate and independent governments is now so entrenched in the literature and so congenial to Canadian preconceptions of what a federal system should look like, that the American variety (although it is the root stock of the genus) appears defective. Canadian textbooks in politics never tire of contrasting the original division of powers in the United States constitution with that in the Constitution Act, 1867 (in the former residual powers to the states, in the latter to the national Parliament) or of noting how the intent of each set of founders was overturned (predominant national government in the United States, strong provinces in Canada). This is a perspective with a long pedigree. In one of the most repeated passages from the Confederation Debates, John A. Macdonald extols the strengths of the proposed federation, most particularly the place assigned the provinces in the new scheme, and contrasts, in this matter only, the wisdom of the respective constitution makers at Philadelphia and Quebec City: ... They commenced, in fact, at the wrong end. They declared by their Constitution that each state was a sovereignty in itself, and that all the powers incident to a sovereignty belonged to each state, except those powers which, by the Constitution, were conferred upon the General Government and Congress. Here we have adopted a different system. We have strengthened the General Government. We have given the General Legislature all the great subjects of legislation. We have conferred on them, not only specifically and in detail, all the powers which are incident to sovereignty, but we have expressly declared that all subjects of general interest not distinctly and exclusively conferred upon the local governments and local legislatures, shall be conferred upon the General Government and Legislature. - We have thus avoided that great source of weakness which has been the cause of the disruption of the United States.14

In Canadian eyes the flaw of the American federal system lay in its assignment of jurisdiction: 'states' rights' and 'state sovereignty' had produced their inevitable consequence. This assumption, that a given cause would have a predictable result, revealed a Canadian attitude toward sovereignty that was distinctly un-American. Certainly, later

150 Part Two interpretations of American federalism, which give prominence to the 'principle of non-centralization' (Daniel Elazar) or to 'constitutionalized decentralization' (Martin Diamond)/5 are foreign to the hierarchical imagery found in the Confederation Debates or in Canadian practice, if a legion of critics is to be believed.16 Absent too from Macdonald's criticism is an acknowledgment that by the winter of 1865 (he spoke in the Legislative Assembly of United Canada on 6 February) Northern victory was certain and with it the Union and federalism saved. It is important for the history of federalism (and not only in the United States) that before, during, and after the Civil War, the system of state government remained intact. During Reconstruction there was no serious suggestion to 'redra[w] the political map of the South.'17 The Civil War was one of the republican moments of which John Gray Pope speaks, and for at least some of the time constitutional politics displaced normal politics. That distinction ('constitutional dualism') is made by Bruce Ackerman who maintains that 'the American Constitution ... constitutes a system of political meanings that enable all Americans to indicate the rare occasions when they mean to present themselves to one another as private citizens/ that is, as distinct from 'merely private citizens.'18 Yet from the perspective of this chapter, the extraordinary feature of the period was not the temporary reconstitution or reappearance of the 'people' - as significant as that is for any exploration of republican thought - but the preservation of federalism. Preservation for reasons at odds with Macdonald's widely quoted diagnosis of the ills of the American system. The Civil War was not a conflict over the distribution of powers, nor was the United States a federation designed primarily to allocate powers between the central and state governments. That is how Canadians see federalism because that is how they brought Confederation into being - through bargaining, through agreement over who would have which responsibilities and which resources. Of course, there is no official record of the Charlottetown or Quebec Conferences, but Joseph Pope's collection of documents, as well as autobiographical accounts of the period and the finished product reveal a singular concern for- the pragmatic objective and, even more, for the designation of roles. Several reasons may be offered for this feature. First, Confederation was not only about creating a new central government; it was also about creating new provincial governments in Ontario and Quebec. Countries become federations for two reasons: to expand in order to become stronger or to contract to deal with issues of identity. (Canada's union was intended to answer both

Federalism 151 desires.) Second, each level of government gained new responsibilities, although the provinces lost substantial jurisdiction. It was therefore important to specify this reallocation. Third, Canada was still a dependency within the Empire, and while the new national government gained some powers formerly exercised by the imperial government alone, the need to recognize limits on the central authorities continued. The final but most basic reason why Canadian discussion focused so completely on jurisdictional matters is that with the exclusion of the Senate no federal institutions were being created in 1864. It cannot be said of Canada's national institutions, as it has of its neighbour, that they are 'organized in terms of the constituent states.' There the states are 'the basic units out of which the federal union is constructed': the Senate, the House of Representatives, whose district boundaries 'are drawn by the State legislatures,' the primary elections 'held by States/ the national nominating conventions 'organized by States and vote by States/ the presidential election 'formally organized on a State unit-count basis.' To this list could be added the franchise (later subjected to Congressional oversight), voter registration, and, possibly, the state courts.19 The ultimate guarantor of the autonomy of the States within the federal system' lies not in the powers the states hold, in other words not in the jurisdiction assigned to them, but in their 'roles ... as structural elements of the national government.'20 American federalism is less a question of states being incorporated into the United States than being incorporated as the United States. And yet at the same time they retained their form, and were expected, by the authors of the Constitution, also 'to retai[n] the peripheralized character of the Articles of Confederation.'21 William Riker has demonstrated that in this calculation the authors were wrong in a most spectacular way: the Senate has not been 'a peripheralizing institution' because it has never 'represent[ed] state governments.22 This development, which Riker describes as 'crucial/ is one which proponents of reform to the Senate of Canada infrequently acknowledge. They should, because it lies at the heart of the difference between Canadian and American federalism, and the source of that difference is the contrast between republican and monarchical perspectives on representation and participation. In American republican theory the people stand outside government; and it is important to remember that means outside both levels of government. In federalism one electorate may choose two sets of governments, but in American federalism one electorate, 'the people/ is 'the "common superior" of both.'23 That is Samuel Beer's estimation and it is

152 Part Two the basis for his conclusion that the American federal arrangement is best described as 'representational federalism.' Viewed from the perspective of the people as 'the ultimate authority' for each level of government, the principle of American federalism becomes as much one of compression as of diffusion. Federal and state representation are superimposed on one another. Here is why questions of coalition and balance assume such prominence in American politics; why party loyalty and discipline are compromised in the furtherance of agreement; and why refusal to participate is unimaginable and, if still suggested, suspect. In this political environment there is no place for talk of secession and, most certainly, no conception that it might be negotiated. The designation and development of the national capital symbolized the primacy Americans awarded representation; it also reflected their distinctive approach to federalism. At Philadelphia the delegates agreed that 'the city must be as unique as the nation. Removed from the Sovereignty of any state, the capital would belong to all the people.'24 Conforming to this exceptionalism, Washington became 'the first national capital in history ever established by law and comprehensively designed.'25 Until the Civil War the city grew slowly, but from the outset its classical revival architecture was associated with 'the democratic and republican virtues of ancient Greece and Rome,'26 while its famous plan, designed by Pierre Charles L'Enfant, sought 'to symbolize the constitution, with its separation of powers, and to represent the federative relationship of the constitutional states in its layout of public buildings, streets, and circles.'27 Washington reconstructed the nation in miniature. American precedent in locating the national capital outside of the principal commercial centre of the country (New York) found favour among those Canadians who, early in the history of United Canada, opposed the location of their seat of government in Montreal - and for republican-like reasons. Better, they argued, that the capital should be 'a place where opinions of the whole might be expressed and acted upon, unbiased by local or sectional feelings.' Not only was Washington so situated, but 'throughout the Union [for example, in New York, New Jersey, Maryland, and Pennsylvania] it was that policy which secured the expression of the voice of the people without any interference on the part of any particular prevailing interest centred at the seat of government.'28 Although this case concealed special pleading on behalf of particular communities, the argument was not spurious. The counterclaim made on behalf of Montreal, by Denis-Benjamin Viger, makes clear that

Federalism 153 at issue here - and recognized as such - was an essential difference between constitutional monarchical and republican governments: In the United States the weal of the people alone, without any counterbalancing power, must rule; under our constitution there must be a reciprocal influence of the Government and the people acting upon one another. The public must have an influence upon the Government, and the Government must endeavour to exercise a salutary influence to direct it as well as receive an impulse from it, and this must be done by having the Seat of Government in a capital which possessed those advantages which he had just pointed out. Look for instance at the advantages resulting in England from the Seat of Government being placed in London, though not the Geographical centre; inhabited by a great body of people, and possessing a number of daily papers which circulated with such amazing rapidity that every citizen had upon his breakfast table every morning the parliamentary debates of the preceding night whilst they were the subject of conversation in the Metropolis. They were circulated rapidly throughout the three Kingdoms and in a few days throughout the whole of Europe. Thus it was that the speakers in the Houses of Parliament became as it were the legislators of the world.29

Drawing on his experience with Kingston and Montreal, Edward Gibbon Wakefield supported Viger's position. Kingston was 'out of the reach of public opinion/ while at Montreal 'one could gain information on the state of feeling in every part of the province/ Everybody came to Montreal, nobody to Kingston, except for the meeting of the legislature: 'At other times, the Government itself was in a state of banishment.'30 There is no evidence in the Debates of the Legislative Assembly that the members understood the theoretical reasons for the Philadelphia convention's decision to locate the new national capital outside the 'Sovereignty of any state/ Still, Wakefield explicitly and others implicitly noted that the argument advanced against Montreal's becoming the seat of government 'would have come better from a citizen of one of the neighbouring republics [sic].'Here, disguised as a dispute over geographical siting, was an early exploration of the interrelationship between government, public opinion, and information (along with its dissemination). The theme Viger and Wakefield advance - that access to public opinion is more vital to parliamentary than to republican government - raises theoretical and practical questions that go beyond the subject of this book: for example, is a parliamentary system more dependent on (and, again, more directly responsive to) public opinion than a

154 Part Two congressional system? Do strikes, demonstrations, or rallies exert more pressure in one or other of the two systems?31 At Confederation American precedent in the matter of locating the capital was ignored. In fact, comparison between the two federations is strong in its differences. Already the capital of the Province of United Canada, Ottawa became the national capital; its Parliament Buildings, constructed to accommodate the legislators of United Canada, became the seat of the federal government. The American innovation of a federal district seems not to have been considered, possibly, said one critic, because 'it would have led to a somewhat anomalous ownership of a territory by a government which is not itself a sovereign power/32 Independence of mind appeared elsewhere: as opposed to imitating the British 'national style' (Decorated Gothic), the Canadian ideal was to create a modern Gothic style. The idea of history as improvement, as a progressive unfolding, was as prevalent in the world of architecture it was in the sphere of constitutional development. One of the essays on the theme of industry to win a government-sponsored prize of £25 in 1855 had as its title: 'It is with nations as with nature, she knows no pause in progress or development, and attaches her curse to all inaction/33 Rather than mirror the federation, the national capital, through the new federal government, 'made its presence most strongly felt' across the country 'through a constantly and visibly expanding network of postal, custom, and inland revenue facilities, as well as by the erection of appropriate parliamentary and departmental office buildings at Ottawa/ 34 The Canadian Federation In the matter of federalism Canada used the United States as an antimodel. Whether or not they were right in their diagnosis of what was wrong with American federalism, the British North American politicians deliberately determined to distribute powers contrary to American precedent: The union of the Provinces must be real and actual instead of nominal/35 No 'mere Federation' but 'a firm and compact union/ was what was wanted, though not so far as to abandon the federal principle altogether in favour of legislative union. Canada would be federal but, as Alan Cairns has observed: 'American federalism was not [its] mother ... in the way that Westminster was the mother of Canadian parliamentary practice/36 Arguably, however, the one aspect of American example the Canadians did borrow, the dispersal of power between

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levels of government, quickly became the predominant feature of Confederation. It is an interesting but unstudied question what other influence American federalism has exerted over Canadian practice.37 Nonetheless, differences outweighed similarities. The United States was independent (it was the insecurity that accompanied independence that sparked constitutional creativity); Canada was a dependency within a protective empire. Dependence diminished one benefit often cited for federation: a strong voice in foreign relations. Goldwin Smith, for one saw external relations 'as the proper province of a federal government ... while domestic legislation is the province of the several states/38 Another contrast, paradoxical in light of the difference in size of the two federations at birth, was the expectation that the authorities at Ottawa would actively pursue domestic development policies. Indeed, if the American arrangement was designed to promote representation, Confederation was intended to accomplish great deeds and might better be called 'purposive federalism.'39 As late as the 18305 'the federal government [at Washington] remained minuscule, a midget institution in a giant land. It had almost no internal functions except the postal system and the sale of western lands.'40 Compare that with section 145 of the Constitution Act, 1867, which made it 'the Duty of the Government and Parliament of Canada to provide for the Commencement, within Six Months after the Union, of [the Intercolonial] Railway ... and for the Construction thereof without Intermission, and the Completion thereof with all practicable Speed.' At its birth and thereafter, the federal government was expected to function as the engine of development in the vast and largely unsettled area that comprised Canada. Mackenzie King once said that Canada has too much geography; if this is the case it is the result of decisions taken long ago. Tom Paine noted Canada's peculiarity as early as 1780: There is one general policy which seems to have prevailed with the English in laying off new governments, which was not to make them larger than their own country, that they might the easier hold them manageable: this was the case with everyone except Canada, the extension of whose limits was for the politic purpose of recognizing new acquisitions of territory not immediately convenient for colonization.'41 With the acquisition of Rupert's Land and the North-Western Territory, the Government of Canada followed the practice, one which still continues in the form of the Canada Lands in the far North. Unlike either the United States or Australia, from its founding the authorities at Ottawa held sway over an imperial hinterland as well as providing cen-

156 Part Two tral government for the federation. This double responsibility, along with other features, such as allocation of jurisdiction and taxing powers that favoured the national government, prevented (had there been any desire for) the establishment of balance in the Canadian federation. In the United States, federation actually allowed for 'future geographic growth without unbalancing the system/42 because it allowed for new states rather than annexing new territory on to old states. In Canada, the entry of new provinces as well as the size of new provinces, presented a recurring threat to the status quo.43 But balance was not what was sought (the politicians of United Canada had spent more than two decades in that exhausting quest). Growth was the goal and national policies the means. This attitude encouraged a hierarchical relationship between the centre and the parts. Hierarchy was not the same thing as deference - the relationship could be competitive, even hostile - but a sense of unequalness prevailed - inequality that flowed from the orientation of each province to the centre. Rather than a predisposition for coalition and balance, as found in the federal system to the south, the Canadian penchant was for bilateralism and negotiation; rather than double government, there was dual government. As important as these characteristics might be for the development of Canadian federalism, their significance for the discussion of republicanism is tangential, except in one respect. In place of double government and, in Lord Bryce's words, 'double allegiance' and 'double patriotism' (the product of the transformative act of federalism), Canada seemed to be a union without unity. Again, Goldwin Smith complained that there was nothing 'to fuse the races,' that all was 'sectionalism.'44 He may have been right, yet his error was to speak of 'races,' when in fact sectionalism was as strong in Nova Scotia and Ontario as it was in Quebec. In the United States the interpenetration of state and national politics, the superimposition of one on the other, contrasted sharply with the geographic, cultural, religious, and linguistic compartments of the Canadian federation. The simultaneous recreation of state and national constitutions in post-Revolutionary America stood out against the continuity of colonies - now provinces - under monarchical rule, intensified by two decades of responsible self-government. In the United States republicanism had meant representative government, and federalism had expanded the ambit of representation. In Canada responsible government under the Crown maintained 'the monarchical ideal of a permanent executive/45 which federalism replicated rather than altered. The people provided the cohesion to the com-

Federalism 157 pound republic below the forty-ninth parallel; cohesion of Crown and Empire to the federation above. Following the Quebec Conference, Joseph Howe informed Lord John Russell that the Resolutions provided for 'a confederacy in name, but in reality the centre of influence will always be in Canada. It can be nowhere else.'46 This was a momentary assessment, but one that passed permanent judgment from the hinterland on the union of the British North American colonies. Its accuracy seemed to be confirmed when, in the first year of Confederation, John A. Macdonald spoke of the two Maritime provinces being 'absorbed into the Union.'47 A slip of the tongue perhaps, but it revealed the residual logic of Macdonald's centralist perspective. For most central Canadians Confederation was 'a reaffirmation of loyalty to crown'; for many Maritimers it was an indication of a weakening of the imperial tie. In central Canada, to be an antiConfederate was to be 'pro-American and disloyal'; in the Maritimes it was to be staunchly patriotic.48 Howe's assessment also emphatically underlined the contrast in organizing principle between the two North American federations: noncentralization in the United States and centralization in Canada. But not for long; the history of Canadian federalism in the nineteenth century is the story of the disengagement of the two levels of government and the emerging symmetry in law and politics of the federal and provincial Crowns. The last point is important on two counts: first, it was the provinces' monarchical base that won them jurisdictional autonomy in their struggle with Ottawa,49 and second, through the office of the Crown, the provinces possessed complete executive power from the start. In other words, executive power was not allocated, as was legislative power under the Constitution Act, 1867. This made the provinces equals, if not rivals, to Ottawa and discouraged the emergence of any federal concept or practice that did not acknowledge the autonomy of each. Dual office holding, in the House of Commons and a provincial legislature, was banned immediately by Nova Scotia and New Brunswick; for Ontario and Quebec it continued until 1873: 'In the first House of Commons there were about twenty-five members from Ontario and Quebec who also sat in the local House, and in both provinces the majority of the provincial Cabinet held federal seats.'50 The Liberal opposition at Ottawa saw the practice as 'subversive' of federalism, and from the perspective of jurisdictional autonomy as the hallmark of federalism, they had a point. By contrast, under section 93, 'the House was supposed to exercise certain powers over the Local Assemblies' when

158 Part Two denominational rights in regard to education were violated by a province.51 In this instance dual representation would lead to a potential conflict of interest. The states were 'the structural elements' of the American national government; except for representation in the House of Commons, the Constitution Act, 1867 communicated no similar principle in Canada. Where because of dual representation or provincially determined franchises for federal elections (1867-85 and 1898-1917) the two political worlds overlapped, the phenomenon proved temporary and the precedent was ultimately abandoned. By the end of the last century, Confederation had been reduced to its core element - the imperative to provincial self-government. Emergencies might temporarily favour the central government, but they did not reverse the long-term aggrandisement of the provinces. In the absence of integrative structures provided for in the constitution, federal-provincial relations evolved outside, in the federal-provincial and, later more accurately named, first ministers conference. It is indicative of the contrast between the two federations that the United States constitution, through Article IV, section 4, guarantees to each state 'a Republican form of government/ while under Part III of the Canadian Charter of Rights and Freedoms, 'Parliament and the government of Canada are committed to making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of services at reasonably comparable levels of taxation.' Joey Smallwood once observed that 'it is quite easy to picture a situation in which self-government would be quite intenable [sic]. That is the alternative to economic development.'52 This was a truth to which the history of his own province attests and one that remains current in Canadian political consciousness, as the Report of the Royal Commission on Aboriginal Peoples bears witness.53 The Charter and Canadian federalism are concerned as much with collective rights as they are with individual rights, and certainly more concerned with collective rights than is the United States constitution. Equalization payments are one example of the commitment to what Kenneth McNaught called 'collectivities.'54 The Canadian and American federations have this in common: they both seek to promote representation. There, however, the similarity ends. In the United States federalism extended the scale of representation; because it allowed every region of a large republic to participate in its decisions, it embraced the national as well as the local interest, made balance easier to secure, and restraint more certain. In Canada, the

Federalism 159 impetus to federalism, as well as the participants and the results, were quite different. One need not ascribe totally to the following depiction of events to appreciate the distinctiveness of the process: The first aspect is that Canada is not founded in the sovereign people's giving rise to a unifying constitution. It is founded in a gathering of pre-existing constitutional associations federating together through negotiations over an immense expanse of time and space ... Canada is a historical 'gathering' or 'federation' of already constituted peoples of diverse kinds, whose former legal and political cultures continue through and into the federation. No great founding revolution or constituent assembly clear-cut the dense old forms and imposed a unifying constitution on the members in an original act of state building ... ... Of course the people are sovereign - first in their provinces, territories and First Nations; then in the Canadian federation and the Assembly of First Nations as a whole.55

The emphasis in the quotation upon a federation of 'constituted [rather than reconstituted] peoples' is basic to this discussion. More than constituted, these peoples possess continuing 'legal and political cultures.' The unity that arises from superimposing state and national realms in the United States cannot be replicated in Canada. Whence comes cohesion then? The answer is partly the subject of the next chapter, on citizenship, and partly found in the representation component of Canadian federalism. This is not to be confused with Samuel Beer's description of the American system as one of representational federalism. There Beer is talking about the multiple layers of participation that accompany the arrangement of national, state, and local government offices. In the context of Canadian federalism, representation is about more than the communication of interest; at its base it is about recognizing status and legitimacy. Canadian federalism is about identity - not of the whole but of the parts. The sense of Confederation as a 'federative union/ with emphasis upon the noun, was absent at the country's beginning and for almost a century thereafter. 56 The event itself prompted neither universal approval nor understanding. An early proposal to mark 'Dominion Day' met with caution in the House of Commons, where members were reminded that 'it would be unpleasant for some parties who were not much in love with Confederation to be called upon to celebrate the anniversary.'57 Putting to one side the act of commemoration, the meaning of the occasion remained unclear or was treated as unimportant. Imperial

160 Part Two patriotism eclipsed national sentiment, the unity of the Empire then and for another half century rivalled concern for unity at home. After the First World War, with the Empire now definitely in eclipse, the situation changed, but not greatly; the constitutional scholar W.P.M. Kennedy commiserated with J.W. Dafoe: 'I get weary and weary of the eternal emphasis on nationhood. A nation does not go around advertising its nationhood.'58 From the perspective of this study, the significance of the Empire was that it deflected the attention of Canadians and their government. The Canadian federation was a three-layered affair, one layer of which could never have been incorporated with the others into a whole but whose presence prevented integration of the other two parts. It would be misleading to imply that the Empire determined the direction of Canadian development - as an aside though, Mackenzie King 'decided to follow the example of the Imperial Conference in England' in the organization and conduct of the first of the country's dominion-provincial conferences to tackle constitutional issues.59 The Empire assumed importance as yet another ingredient to dilute the growth of a sense of nationhood, that and a shared monarchy which, in Canada's provinces and at its centre, was the source of executive power. If the federal government looked to the imperial sphere for recognition and status, finally achieving that aim with the Statute of Westminster in 1931, the provinces did the same within the Canadian federal arena. Why they did this, in other words, the source of the strong provincial localism and particularism that drove their ambitions, is well documented. For a study of republicanism and federalism, however, this is not the main issue, although it does raise the question whether intense localism is the enemy of republican rule when that rule extends beyond the locality. American scholars are united in the view that the American states are more than 'unitary polities'; they are, says Daniel Elazar, 'constitutionally unions of their counties or towns.' The American citizen, too, is more than a singular person. He or she is 'socialized into a kind of federalistic individualism,' and this character permeates all aspects of American life.60 Could the same be said of life within the Canadian federation? It would take more research than currently exists to answer that question with confidence. Significantly, a study of political perceptions in Canada, which uses the 1974 national election study, emphasizes the spatial orientations of respondents.61 For instance, Canadian attitudes toward the symbols of country and government (as measured from the

Federalism 161 responses of over 6,600 citizens) virtually do not exist: 'No Canadian made a spontaneous reference to a heroic figure, political or otherwise, out of the past, and none mentioned the flag, either as a political issue or as symbol/62 With regard to government, only the capital city and the Parliament Buildings themselves were mentioned. There was no reference to political institutions or offices. Whether there is such a thing as a Canadian identity that reaches beyond a particular locale is still a subject for discussion. Some documents, like the Report of the Task Force on Canadian Unity (Pepin-Robarts Report) imply that the answer is no, that Canadians are united only by their differences and that cohesion of federal power in the Constitution Act, 1867 is incompatible with the concept of provincial sovereignty. As a result, the Canadian judicature - the organization of which does not conform to the territorial principle, since judges of Superior, District, and County Courts in each province are federally appointed and paid while the court structure is provincially determined - should be transformed: The current practice ... whereby judges to higher provincial courts are appointed by the governor general on the advice of the central cabinet is a questionable remnant of federal centralization.' The Report proposes that 'all provincial judges would be appointed by the provincial governments/63 The principle of locality is a strong feature of Canadian federalism and will become stronger under most schemes proposed to deal with the country's unity problem. Whatever emphasis it receives, locality is tied to jurisdiction. (This is one reason why regionalism freed of a provincial base is in decline.)64 Identity, locality, and jurisdiction reinforce the geographic (that is, the provincial) component of representation. If American federalism is an arrangement of overlap, penetration, and incorporation, Canadian federalism is one of division, separation, and compartments. If American federalism is about states securing access and sharing power in the national government, Canada federalism is about acknowledging provincial difference and maintaining divided jurisdiction. In the Anglo-American tradition representation is a constitutional matter. The Great Reform Act of 1832 is the classic instance, as the prominence that famous statute receives in the account of Britain's nonrevolutionary evolution attests. And so it should, for through representation territory may be incorporated and thus sovereignty extended or previously excluded groups brought within the political system and empowered to take control of Parliament. In Canada representation in the federal system is a constitutional matter, not only in the sense that

162 Part Two changes to the federal agreement require constitutional amendment but also in the sense that representation in the federal system constitutes recognition and status. There are specific historical reasons for this Canadian perspective, reasons that set Canada apart from other federal systems and which, through that distinction, speak to the issue of republicanism. Once again the Province of United Canada provides the backdrop and its politics are central to an understanding of the development of modern Canada. United Canada was a contradiction - a unitary constitution made operational by a system of dualistic politics. It is sometimes said that the united Province was an embryonic or incipient federation; if so it offered little guidance to the new Canadian federation after 1867. Nor was the pre-i86y system itself modelled on any precedent: There was no other country like Canada. Had we an homogeneous population? no; we had two distinct races here ... There was then no other colony under British Government like this; and, in forming a Cabinet, both sections of the Province ought to be taken into consideration.'65 Here - especially here - is supporting evidence for Eugene Forsey's claim that 'the Canadian Federation is in some respects sui generis.'66 The thread running through its twenty-five year history was the principle of balance. Everywhere reflection and doubleness: alternating the Assembly's Speakers between the two linguistic constituencies; moving the capital periodically up and down the St Lawrence River between Canada East and Canada West; in the absence of federalism and divided jurisdiction, resort to the contentious double majority, that is, voting which took its majority from each part of the Province rather than from the Assembly proper; the bifurcation of portfolios; resort to coalition government; and more. But it was in the matter of legislative representation where dualism was most intense and of political significance. For the constitutionally entrenched contingent of sixty-five members from each of the Canadas became the irritant that ultimately led to the larger federation. George Brown's campaign for rep-by-pop unsettled not only French-speaking residents of the slower-growing area of Canada East; it unsettled politicians like Macdonald. Ged Martin has argued that Tory dominance in United Canada could not, unaided, resist Brown's popular appeal, a truth all the more obvious after the entrenched provision requiring equal representation from each part was deleted in 1854 by the British Parliament.67 These developments explain Macdonald's search for allies outside of the St Lawrence Valley. The attraction of federalism as a solu-

Federalism 163 tion to United Canada's political problem lay in the alternative it offered to parliamentary reform. Unlike the United States, where federalism magnified representation and in the process introduced a new national form of republicanism, in United Canada it presented an escape from the full effects of rep-by-pop. Even before i July 1867, the elasticity of the future federation was plain to see in the reconstituted entities of Ontario and Quebec. Ontario, formerly Britain's largest colony in the true linguistic sense and now Canada's most populous province, provided the setting for the first and fullest expression of unicameralism in the Empire. True, it was not quite as pure an expression as George Brown would have wished. At Quebec he had proposed as a model for the provinces 'one Legislative Chamber for three years, no power of dissolution, elected on one day in each third year. Lieutenant-Governor appointed by the Federal Government. Departmental officers to be elected during pleasure, or for three years. To be allowed to speak but not vote.'68 That would have meant abandoning responsible government, a price none of his fellow delegates was willing to contemplate: the provinces, said McCully of Nova Scotia, should have responsible government 'in miniature.' Brown's objectives, simplicity and economy, did find favour, however. Ultimately, it was agreed (in McCully's words) 'to let Upper Canada try a single Chamber, and if it succeeds the other Provinces can afterwards adopt it.' For the purpose of the present discussion, the most germane exchange in this debate occurred when Cartier, who spoke immediately after Brown, dissented: 'I entirely differ with Mr. Brown. It introduces in our local bodies republican institutions.' Unfortunately, Cartier did not elaborate on the aspects of Brown's proposal that he saw as republican. It could not be the unicameral legislature, since American republican theory and practice celebrated a bicameral derivation of sovereignty. It could not be the appointed lieutenant-governor or the elected departmental officers, neither of whom existed in the American system (although, it is true, some public servants were elected). The only element of American republicanism in Brown's proposal was the proposal for a legislature with terms. That and the subtraction from the prerogative it implied constituted a very partial appreciation of the meaning of republicanism. Absent, as usual in Canadian reference to the subject, was acknowledgment of republicanism's cardinal characteristics of popular sovereignty and institutional design to promote balance and restraint.

164 Part Two Brown's explanation for his unicameral stance passed without comment. In the context of this chapter, however, it should be noted: 'One material point is that the choice of the Federal Legislative Councillors will extinguish or largely diminish the Local Legislative Councils. If you have a Local Legislative Council you then embarrass yourselves by reconstructing that body.' Federal bicameralism made provincial bicameralism unnecessary. Such was the view of a prominent father of Confederation in 1864, a view none of the other fathers rejected then and which within twenty years had become the prevailing wisdom. Having the unanimous support of the five attending provinces, Resolution 12 of the Interprovincial Conference 1887, calling for amendment of the British North American Act, 1867, read as follows: That in two of the Provinces of the Dominion there is no second chamber; that in five of the Provinces there is a second chamber; that in one of these five the Legislative Council is elective and for a limited term; that in the other four the appointments are by the Lieutenant-Governor and for life; that the experience which has been had since Confederation shows that, under Responsible Government and with the safeguards provided by the British North America Act, a second Provincial Chamber is unnecessary, and the expenses thereof may in all the Provinces may be saved with advantage ...69

Brown was not original in his dismissal of bicameralism in the provinces. As early as 1858, the Canadian Governor General, Sir Edmund Head, wrote to the colonial secretary in terms that heralded Brown's later proposal: If each separate local government is to possess and exercise only definitepowers might not the whole of its machinery be simplified & made less expensive? If the ordinances of a local Govt. were liable to be disallowed within a given time by the federal or central legislature, would there be any occasion for a second house in each Colony? Would not a Lt.-Gov. & an elective Council be sufficient? Might not the Lt.-Govs. even be elected for a definite term of years subject to the Queen's approval? If any such scheme as this were adopted the relations with the Mother Country would be kept up by the Central Govt. only: the Governor General holding, as now, the Queen's Commission & being sent from home. It seems to me that there would be no imposition or oppression in allowing the central (or federal) legislature to control the acts of the local Governments in certain fixed conditions, because the inhabitants of each separate Province & its Government

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would be represented in the former. I concur with your Lordship in thinking that the judicial arrangements would offer little practical difficulty - I would have a court of appeal for all the colonies in certain cases, but I would make the Judicial Committee of the Privy Council the "Supreme Court" in all constitutional questions between one Province and another or between one Province & the central Legislature.70

Head did not go so far as to envision terms for the government and to that extent his scheme might be considered less radical than Brown's. Still, it is where they agree that calls for notice: central government strength rather than weakness vitiated the need for strong provincial institutions. Provincial representation in the federal Parliament made structural duplication redundant. There is a theory of federalism that elevates redundancy to an organizing principle; this theory has found no following in Canada.71 Brown and Head's conception of federalism explains what for some students of Canadian federalism is inexplicable - the inequality or imbalance between centre and parts. And in that explanation lies the reason why republicanism, Cartier's observations on the subject notwithstanding, possessed no attraction. In the Confederation Debates, J.-B. Eric Dorion said of the scheme that 'all is strength and power/72 and it was true: the monarchical centre would unite and protect the parts, but with the participation of the two houses of Parliament, through which the 'inhabitants of each separate Province & its Government would be represented.' With this background it is possible, perhaps, to approach the subject of the Senate of Canada and federalism without the preconception that federations require an upper chamber representative of the parts and suspicious of the central authorities. This was not the root of the Canadian federal arrangement. However, it would be misleading to suggest that Brown spoke for other than Upper Canada or that Ontario's democratic tendencies reflected sentiment elsewhere. In particular, Ontario's opinion was not Quebec's. Brown's simple and inexpensive scheme did not serve Quebec's interests. Federalism for Ontario was about expansion and growth; for Quebec it was about stability and identity. The new province's provincial constitution reflected those priorities, as did sections of the federal constitution. Quebec continued with sixty-five members in its Legislative Assembly, the same number Canada East had had in United Canada. The sixty-five constituencies were listed in a schedule to the British North America Act, 1867 (where the constitutions of Ontario and Quebec were found) and their boundaries could not be altered unless a

166 Part Two majority of the affected members agreed. The Legislative Council had twenty-four members, appointed for life, one each from the same twenty-four districts that provided for senatorial representation. The intricacies of Quebec's legislative arrangements are immaterial except for two points. First, Quebec's bicamerialism lasted longest, until 1968, with the Legislative Council being abolished only because it posed a threat to the government's nationalist credentials in the i96os.73 Second, the details are no accident but a function of the institution of federalism in a polity like Quebec, which is perennially concerned about the position of minorities. Eleven of the sections devoted to provincial constitutions are assigned to the legislative powers in Ontario and Quebec; nine of the eleven deal with what Macdonald in the Confederation Debates called Quebec's 'individuality.' That individuality comprised not just the French language and Roman Catholic religion but, for a sizable number of residents, the English language and Protestant religion as well. In the Federalist Papers James Madison celebrated federalism's capacity to reconcile the multiple interests and cleavages of a geographically extensive polity. This would be accomplished centrifugally, through the distribution of powers and of jurisdictions to the parts, and, centripetally, through representation of the compounded polities at the centre, where each of the constituent parts present bargain with all. Thus representation was as crucial to the achievement of federalism as federalism was to the success of republican government. In Canadian federalism the emphasis was all one-sided, with the centrifugal arrangement of power intended to accommodate local 'individuality.' In most parts of the new federation the population was homogeneous and the character of the individuality unproblematic. In Quebec, where religious and linguistic divisions ran deep, identity was a problem and local autonomy within Confederation the solution. Only gradually, and then not for reasons of cultural identity, did provincial rights in Ontario and elsewhere emerge to challenge the presumption of federal paramountcy.74 Despite the vast literature devoted to the subject of Canadian federalism and despite the memorable imagery of its 'watertight compartments,' there is still evidence to suggest that for many Canadians federalism remains not a principled but a convenient arrangement of power. That is the conclusion Canadian philosopher Will Kymlicka draws about EnglishCanadian attitudes to federalism. While working for the Royal Commission on New Reproductive Technologies, he discovered that most groups who made submissions - be they pro-life, pro-choice, medical

Federalism 167 associations, or other - assumed that the federal government should set the basic rules. Most groups, that is, except for those in Quebec; there it was 'assumed that provincial governments should set the basic rules.' For English-speaking Canadians 'the idea that the federal government might be constitutionally prohibited from establishing such a scheme was never even considered.' On the contrary, any question deemed sufficiently important was 'assumed' to confer on the federal government 'a kind of ultimate authority.'75 The mystery of the Canadian federation is to know what Canadians think about national issues. Perhaps more accurately phrased, the mystery is how to refine the multiple views and interests which a federation, by definition, encompasses if it does not actually foster. For omitted from the Canadian federation - if the Madisonian model is taken as the ideal type - is an institution to promote and then harness the centripetal forces of federalism. Neither the House of Commons nor the 'federalized' cabinet drawn from it are adequate to the task. Evidence of the problem is the repeated inability to translate parliamentary sanction for policies generally deemed of high constitutional import into public approval. In its place, opinion in Canada appears fragmented and fractionated. The Senate of Canada Ontario's desire for representation by population drove the British North American colonies into federation and made representation the central, constitutional question of Canadian politics thereafter. In achieving its ambition to escape the confines of union Ontario, and ultimately Canada after 1867, paid a price in the form of the federation's new Senate. In exchange for acquiescing in rep-by-pop in the lower house, the other provinces exacted from Ontario agreement, first, that seats in the upper house would be allocated equally according to divisions (twenty-four seats per division, with Ontario, Quebec, and the Maritime provinces each treated as a division) and second, that seats would be filled through appointment by governor-in-council. Both concessions were seen by non-Ontarians as counterweights to Ontario's 'democratic tendencies' and preponderance in the House of Commons.76 More than a century later, discussion and debate on Senate reform inevitably turn on the institution's failures as a federal chamber. Scores of critics echo (or anticipate) Roger Gibbins's comment that 'the objectives of Senate reform cluster around a single core, that of enhanc-

168 Part Two ing the quality of regional representation within national political institutions by national politicians.'77 Many go further and advocate, in the manner of Triple-E proponents, equal and elected representation from the provinces. Their argument takes as its first premise the one Arend Lijphart has advanced: 'Second Chambers that are not directly elected lack the democratic legitimacy, and hence the real political influence, that popular election can confer.'78 As valid and admirable as these objectives may be at the end of the twentieth century, they were not present at the creation of the Senate. While the Fathers of Confederation were not explicit in articulating a purpose for the upper chamber, it is clear that they did not envision it acting as a House of the Provinces. In light of what has already been said about their view of what was wrong with American federalism, that is, unbridled states' rights, and since at this time (and until 1913) United States senators were selected by state legislatures, imitation of the American states-based model held slight appeal. Appointed by the governor-in-council for life (until 1965, when mandatory retirement at age 75 was introduced), Canadian senators were in a position to be independent of provincial governments, of the people of the provinces, and of public opinion in the country. The federative principle in Canada concerned jurisdiction not representation. Equality of power in the matter of jurisdiction for the provinces, normally unconstrained by the exercise of superordinate federal power in the form of disallowance or declaratory legislation - that was the view of how Canadian federalism should work. Neither equality of representation nor popular representation of provincial electors was possible. Discussion of the Senate consumed more time at the Quebec Conference (six of fourteen days) than any other topic, but the conundrum of how to reconcile the monarchical and federative principles eluded agreement. The issue was the appointment of extra senators in the event of deadlock between the two houses of Parliament. Provision for appointing a limited number of such senators (three or six, later four or eight) representing equally the three (later four) senatorial divisions nonetheless constituted, as Macdonald acknowledged, 'a limit to the prerogative.'79 The unvoiced, or at least unrecorded, justification for this trespass on the royal prerogative was the memory Canadians carried of the passage of the Rebellion Losses Bill twenty years earlier. Tacking' the Legislative Council then had done more than any other single thing to push the cause of an elective council, the first stage of which arrived in 1856:

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[T]he manner in which the infamous Rebellion Losses Bill ... was passed had convinced the whole country, that there was a degree of extraordinary power lodged somewhere, with which it was not safe to entrust any set of men, [and] upon which an elective council alone could exercise a wholesome control ... For the eyes of the public had been opened and they perceived clearly, that if it was in the power of the present administration to fill the Council with men pledged to carry that Bill ... it was equally in the power of their opponents, whenever they succeeded in turning them out of office, to act in the same high handed manner, if they found such a course necessary for their purpose.80

But now the safety valve of election would once again disappear, to be replaced by appointment. On many later occasions when Senate reform rose for debate in Parliament, the method of selection, by the Crown on advice, would be defended" as in the British tradition. On these occasions no one asked why, if tradition were determinative in the matter, the whole tradition should not be emulated. As became clear in the British parliamentary crises of 1910 and 1911, the threat to appoint additional peers proved sufficient to secure the Lords' consent to curtailment of their power. That stratagem was denied to the Canadian government. Thus, to a degree, the limit on upper chamber expansion constituted a restraint on governmental adventurism in the lower chamber. And that was the officially conceded task assigned to the Senate. School textbooks, when listing the 'duties of the Senate/ spoke not of its representing the provinces but of its being required 'to pass bills sent from the House of Commons, to initiate legislation not involving finance, [and] to act as a check on hasty legislation of the House of Commons.'81 Similarly, immigrants seeking to become Canadian citizens received 'facts about Canada 'in question-and-answer form. The response to the query 'What is the principal function of the Senate?/ they learned, was 'to act as a "check" on the House of Commons.'82 After the i88os, judicial interpretation of sections 91 and 92 of the Constitution Act, 1867 did much to right the balance of federalism in favour of the provinces. Still, prominence in the field of taxation along with access to the declaratory and disallowance powers, for example, as well as the absence of a higher law in the nature of a bill or charter of rights, insured that the central government remained a potent force. Thus the need for the upper chamber to continue to supervise the lower did not disappear with the changing fortunes of the two levels of government. Nor did its other responsibilities; for the Senate, as every legislative body, had more than a single function. Early in this century and in

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Part Two

a debate on Senate reform, George Foster, later a privy councillor and senator himself, observed that the justifications for a second chamber are many and diverse: The second chamber was deemed to be necessary to protect the rights of the different provinces, but not this alone. When it was thought to be necessary to have a bi-cameral institution here, with the Senate a part of it, it was considered to be part of the office of the Senate to protect the minorities, and in the composition of it, it was so guided that it did become a protection to the different provinces as regards their minorities. But the moment you put all the stress upon this point, you make the basis so small that no broad body can be founded upon it. Too much stress has been laid on this as the province of the Senate. The idea of a Senate is broader and higher and stronger than that. The idea is that it shall be a check on the popular body. But not merely that either. Above all, it is supposed to be the repository of the mature wisdom of the country.83

In short, there is more to bicameralism than the needs of federalism, as Canadians, so imitative of British institutions and practices in other areas, would be the first to know from studying the House of Lords. Moreover, Canadian federalism was an unusual arrangement at the outset - quasi-federal, K.C. Wheare has said - and in such arrangements, which for explanatory purposes might better be turned around and called quasi-central, an upper chamber that was pre-eminently federal in character and function would be unexpected.84 As opposed to the United States, whose federal system succeeded a brief period of confederation: 'Canadaf's] confederate ingredients seem to emerge ... after the federation has been in place for a century.'85 Perhaps for this reason, what might be termed the federalization of the Senate debate took time to emerge. Arguments for provincial legislative selection of senators, either entirely or restricted to a portion, with the remainder chosen by central appointment, were heard - but infrequently - in the nineteenth century; certainly these arguments were outnumbered by proposals for outright abolition of the upper chamber or for limitation to its powers in the form of a suspensive veto. The Dominion-Provincial Conference of 1927 was the first but not the last intergovernmental meeting to discuss without agreement the place of the Senate. All of the foregoing is well documented and receives mention only because it underlines the indeterminate role assigned to the Senate in Canadian affairs. No agreement and, more to the point, no conception of the Senate as a federal body, either to represent provincial rights or, to

Federalism 171 adapt Brian Galligan's description of the Senate of Australia, to be 'part of the national legislature constituted on the federal principle of popular representation of electors by [Provinces].'86 In the absence of a central institution where federal might be imposed on national politics, the strains of Canadian federalism were channelled through the political parties and, more recently, diverted into the extraconstitutional mechanisms of intergovernmental relations. Partly in response to this institutional bias, but also partly as a bargaining counter in Canada's prolonged constitutional discussions, federalism has now entered the Senate debate almost to the exclusion of other subjects: The current debate on the second chamber has been almost completely preoccupied with the representational dimension.'87 In this context representation means provincial representation, and the unresolved questions turn on the number of senators to be assigned to a province and the manner of their selection. Infrequently, pleas are heard for representation of interests other than territory, for instance, 'women on an equal basis with men/ but the principal thrust of reform at the end of the twentieth century is to provincialize the Senate.88 The goal of provincialization would be accomplished by making it a House of the Provinces (of whatever name) through popular election, or provincial government selection, or federal appointment from provincially created lists, or some composite mechanism. The effect of this Canadian version of an upper-chamber 'fancy franchise' would be to carry Canada's federal evolution to its inevitable conclusion. Samuel Beer has written of 'the national theory' that provided 'the powerful logic of [the American founding fathers'] federal design.'89 The logic of Canada's original design was rejected long ago, and not just in the matter of which level of government might legislate, say, labour standards or an agricultural marketing regime. The integration of the nation through a bicameral Parliament but largely unicameral provincial legislatures might once have made sense. Bourinot said it did, because 'the veto given by the federal law to the dominion government over the legislation of the provinces, did away to a large extent with the necessity for a legislative council, for its raison d'etre.'90 Similarly, the monarchical executive (its representative in the provinces appointed by the governor-general-in-council) knit the federal fabric together. Once, perhaps, but no more. Canadian federalism is institutionally deprived. As a consequence the provinces seek to protect themselves through the acquisition of power or, for the majority who are poor, the "have-not" provinces, by estab-

172 Part Two lishing a suppliant and dependent relationship with the centre. In Canada the welfare of each remains the concern of each. Republicanism and federalism reinforced interdependence, monarchy and federalism produced either dependency or a quest for autonomy. In the last quarter of the twentieth century talk of secession of Quebec from Canada occupies attention. It is no depreciation of the singular and serious character of that problem to note that such talk has numerous precedents in Canadian history: before Confederation there were the annexation movements in United Canada (the 18405) and British Columbia (the i86os), after Confederation the secession cause in Nova Scotia (the i88os) and Western Canada (the 1930s).91 Quebec society may be distinct and its grievances unique, but the secession option is not new. There are two answers to the question why secession remains forever green in Canadian politics, both of which have something to contribute to the larger topic of republicanism. First, secession, as opposed to annexation, need not cause a constitutional rupture. In light of the chaos that would follow Quebec's departure from Canada, this may seem an improbable estimate. Yet as the Rhodesian example in the 19605 demonstrated, a unilateral declaration of independence may be combined with professions of loyalty to the Crown.92 Being infinitely malleable, the Crown can adapt to almost any constitutional change. 'Layered' allegiance is part of its strength; it is also part of the difficulty countries experience when they actually want to sever the monarchical tie.93 Putting to one side any judgment about whether the action is justified, the important point to note is that constitutional continuity may actually accompany secession. This is one reason why in Canada there is a tendency to speak as though it is possible to revert to the status quo ante, as Newfoundland (admittedly not then a province of Canada but a full-fledged Dominion) once did. Unlike the irrevocable, indissoluble, rigid republic and its federation, Canada's monarchical federation lacks definition to such an extent that its parts may periodically contemplate disengagement or re-engagement on new terms. T.C. Davis, Saskatchewan's attorney general in the late 19305, informed James Gardiner, former premier and then federal minister of agriculture, that the province's substantial brief to the Royal Commission on Dominion-Provincial Relations (the Rowell-Sirois commission) constituted in his eyes a political 'Bill of Rights' for the province in Confederation.94 That perception - the idea that the terms of union may be redefined or that they are ever renegotiable - reveals an attitude toward federalism that is unrepublican in the American sense of the term.

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Yet it is the American model of republicanism, at least in regard to a separation of institutions, which the Parti quebecois proposes an independent Quebec emulate after secession. However, it is the proposed act of separation from Canada, and not the constitutional structure of the successor state, which attracts public attention. While it would be constitutionally feasible for Quebec to maintain its monarchical base after separation, since its inception the Parti quebecois has committed itself to a thoroughly republican scheme: A notre avis, il serait done souhaitable de revenir plutot au regime presidentiel 'classique/ ou Ton elit separement un chef de 1'Etat qui est en meme temps responsable du pouvoir executif, et une Assemblee Nationale libre de toute attache ministerielle dans 1'exercise de ses fonctions legislatives et budgetaries. II faudrait songer egalement a coiffer nos -structures judiciares d'une 'Cour Supreme' qui, en plus d'etre le tribunal de derniere instance, serait chargee du role essentiel de chien de garde et d'interprete final de la Constituition.95

The structural possibility of secession may not encourage the idea of separation, but it does not discourage it either. And because secession is structurally possible, it is intellectually conceivable. Conversely, the contribution of American republican theory (a combination of national representation, separation of powers, and federalism) to the preservation of the Union cannot be ignored. When compared to the United States, the cohesion of Canada's present federation appears fragile indeed. The platform of the Parti quebecois may be a rare instance in modern Canada of a reference to republicanism; it is also a cryptic one. The model republic it anticipates follows neither American precedent faithfully, which is not surprising, since an independent Quebec is not to be a federation - federalism being viewed to date in Quebec as an impediment to realizing the will of a sovereign people - nor does it borrow from the more common variety of a parliamentary republic. A unicameral legislature with a presidential executive outside the legislature offers neither the balance of the one nor the legislative predominance of the other. Once again, it would appear that the disinclination of Canadians to theorize about their constitutional base is destined to persist.

7

Citizenship

Republicanism and citizenship are naturally related, whereas monarchy and citizenship are related only through adoption. For any one raised in the British parliamentary and monarchical tradition, the most arresting scenes in A Tale of Two Cities are not those of the Revolution or the Terror that succeeded it, but of a society in which customary authority and guardians have vanished. The foreignness of that possibility is matched only by the impersonal attribution of citoyen and citoyenne to one and every Frenchman, as if citizenship alone were the basis of society. Here, through depiction of mood and atmosphere rather than by didactic explanation, Dickens's reader discovers a new political condition, where an omnipotent people rather than Parliament are sovereign, independent, and national. In the United States, too, citizenship was central to the definition and survival of the republic, but not so universal as to eradicate the social gradations that preceded it. For this reason in English eyes the American Revolution was viewed as less illegitimate than the French. Nonetheless, what happened in the thirteen colonies was a revolution, and the public ascription of citizenship in the new nation then and thereafter set the United States apart from the mother country and those states, like Canada, whose constitutional evolution in the British Empire continued without interruption.1 Indeed, the transmogrification of Empire into Commonwealth was accompanied by the emergence of a distinctive usage for familiar constitutional terms such as citizenship which, as 'mutual citizenship/ was treated in the interwar period as 'one of the principal non-fundamental conventions of the Commonwealth.'2 This last was the private language of constitutional specialists. There might be a variant of citizenship within the Commonwealth, but it was

Citizenship 175 as nothing compared to republican citizenship. Well into the present century Canadians understood that difference, as one of their former ambassadors to the United States recalls when speaking of his childhood: 'For Canadians, allegiance to a piece of paper or even to a piece of cloth (Canadians did not possess a national flag at the time) was a difficult thing to comprehend. It was a human being, the king, who symbolized our country, our nationhood, and the British Empire.'3 It was not until 1946, and the passage of the Canadian Citizenship Act, that the status of citizenship assumed legal significance in Canada. Up to then it was no more than a concept of convenience made desirable to facilitate relations with other countries. Thomas Mulvey, a former undersecretary of state of Canada, recognized that the term had 'no precise technical meaning/ since citizens 'strictly speaking' are members of a republic. But, he added, 'the designation ... was extremely handy for Canadians entering the United States. The United States immigration officers ... could not understand the precise standing of Canadians as British subjects in Canada. For the American officers, it did not adequately differentiate Canadians from other British subjects.'4 Citizenship as instrument. This was a parallel approach to the one Canada adopted toward the Empire-Commonwealth. (Louis St Laurent's inaugural Gray Memorial Lecture at the University of Toronto a few weeks after the passage of the Citizenship Act was candid on this point, as one of its subheadings indicates: The Commonwealth which we Ourselves have Fashioned for Achieving the ends we Desire in World Affairs.') 5 It is one approach found as well in the republican debate in Australia at the end of the twentieth century: the fact that Australia's head of state is not 'one of its own citizens' is repeatedly cited by the Australian Republican Movement not only as evidence of a need for change but as an opportunity for Australia 'to fashion a place for itself in the new world order.'6 Here again, as in Canada at an earlier time, the context is external: to establish to the satisfaction of others (and, vicariously, for those at home) that the former colonies are distinct and, in Australia's case, totally separate from Great Britain. It needs to be said that citizenship and republicanism are not synonymous in the Australian debate. As a parliamentary committee in Canberra has observed: '[M]any of these broader issues that Australians want to ... enshrine in a new constitution, essentially concern the quality of citizenship and democracy ... rather than explicit questions about republicanism or monarchy.' 7 In Canada citizenship as instrument has given way to citizenship as symbol. A House of Commons committee report in 1994 described

176 Part Two 'symbolism' as 'the most important aspect of citizenship/ while a Senate committee report a year earlier speculated on why Canadians might be so sensitive about the matter of symbols: 'Our pragmatism has led to a gentler politics than that we often find amongst the more idealistic and patriotic breast beaters of other nations.'8 The inference was that Canadians needed to be more assertive in publicly identifying themselves with Canada and what the country stood for. Why they should do this was left unsaid but not unknown - Canada's internal unity was experiencing severe strain. Australians who support a republican option speak of their country's ambiguous personality abroad because its head of state is the head of state of more than Australia. Canadians never speak this way of themselves, nor do they experience any uncertainty about Australia's distinctiveness. On the contrary, the House of Commons committee referred to above found itself 'attracted by the Preamble of the Australian Citizenship Act, 1948,' and approvingly reproduced it in their report, 'replacing references to Australia with those to Canada.' In Canada symbolism is sought to promote internal unity, or in the words of the minister of citizenship and immigration in 1994, to 'rekindle our love affair of country.'9 To that end, the House of Commons committee took as 'core principles of citizenship' the promotion of values (among these tolerance, compassion, unity in diversity, and appreciation of the bilingual nature of Canada), the possession of rights (for example, to vote, to run for office, to enter and leave Canada) and the fulfilment of responsibilities (the most important of which was for individuals to participate in the life of the country). Symbolic of citizenship is the Maple Leaf flag which, since 1995 (the thirtieth anniversary of its adoption by Parliament), has become the centrepiece of Flag Day ceremonies each February. Polls have shown that among English-speaking Canadians 'the flag ranked first as important to Canadian identity, but only sixth in Quebec.' Following the flag as national symbols, outside of Quebec, were the national anthem, national parks, the RCMP, national historic sites, and the Charter of Rights and Freedoms. In Quebec, the Charter ranked first, followed by national parks, historic sites, bilingualism, the national anthem, and then the flag. Significantly, the Globe and Mail reported that 'the Queen ranked 12th both in Quebec and in the rest of Canada/10 The different priority awarded the national flag by those inside and outside Quebec is scarcely surprising in light of the tension that permeates the federal system, nor is it without precedent (and not just between the Quebecois and the rest of Canada) in the general field of recognition.

Citizenship 177 In his history of Canada's national historic parks and sites, aptly titled Negotiating the Past, C.J. Taylor chronicles the strong regionalism that infected decisions on national commemoration in the first four decades of this century; for example, the perceived 'centrality of Maritime history' or of loyalism to the history of Canada. One consequence of the latter bias was that 'William Lyon Mackenzie was repeatedly turned down for commemoration despite the entreaties of the ... York Pioneer and Historical Society/11 What is important for this discussion is the source of the present disagreement, for unlike the preceding references to different orders of preference in the matter of flags and anthems, the origin of the current conflict rests in contrasting concepts of citizenship. Nowhere is the nature of that contrast more emphatically stated than in the 'Dissenting Opinion from the Members of the Bloc Quebecois' found in the House of Commons report (Appendix C) discussed above. In addition to depreciating the review of the Citizenship Act as a partisan exercise by the federal Liberals in the period before the 1994 Quebec election and the expected referendum on independence, the Bloc members anatomize the committee's report and especially the preamble it proposes for a revised Citizenship Act. In particular, they attack the preamble's first clause, which states that 'Canadian citizenship represents formal membership in the Canadian community.' That 'community/ they complain, is not defined; rather, it seems 'to include every individual living on Canadian territory, whatever the larger collectivity to which he or she may belong; this denies the reality of the two founding peoples and the First Nations.' Furthermore, the absence of any reference to Quebec they deem 'incredible/ while 'the "homogenizing" thrust of this clause ... flies in the face' of Quebec's distinctiveness, one, they say, already recognized in the Canada-Quebec Accord on Immigration.12 In this critique the Bloc members go to the heart of the modern debate about citizenship - and not just in Canada. They insist that Quebec, and by analogy the First Nations, is itself a 'community/ a distinct society, with an historic past and, more important still, a living memory. Elsewhere in the literature on nations and identity, it has been argued that premodern and modern societies differ in the place and function of history in each. In the former, history is equivalent to a 'tradition of memory/ unspoken, ingrained, and spontaneous; in the latter, it is voluntary, individual, and deliberate. In the transition from the first to the second, the 'memory-nation' is replaced with the 'memory-individual.'13 In the literature of development politics, 'premodern' and 'modern' are

178 Part Two opposing ideal types, between which existing societies may be situated. The present discussion need not explore this subject further, except to note that along that continuum 'sites of memory' replace 'environments of memory/ As an example, federal Canada itself has no environment of memory, only sites in the forms of 'flags and monuments, commemorative events and celebrations.' This is not to say that within the country there is no memory environment; in fact, as James Tully has suggested, there are several, and it is this plurality that constitutes a large part of Canada's unity problem.14 By contrast, in the United States there is no society with an environment of memory that predates the Revolution. The Revolution, but more particularly the founding (and refounding) of the republic, absorbed all memory. It is a commonplace if antique observation that Americans are defective in possessing any historical consciousness but their own. There is irony in this critique by the Bloc members. As they observe: The Committee has put forward for consideration the preamble of the Australian Citizenship Act, which it has adapted to the Canadian situation,' yet in Australia the Act has been subjected to some of the same criticism levelled by the Bloc. For instance, the (Australian) Senate Legal and Constitutional References Committee has acknowledged 'the problem ... associated with a unitary nationalism designed to represent an ideology of social unity,' and echoed the concern expressed by witnesses who came before it, specifically that 'the concept of citizenship has become too closely associated with traditional nationalism and the idea of a single national identity.' Instead of some static and exclusionary norm, such as the right to vote, the Australian committee opts for "making participation the ultimate indicator" of citizenship. Participation, defined as involvement in society's economic and cultural, as well as its political, processes will, the committee believes, embrace far more Australians than any definition of citizenship that takes as its core meaning 'common characteristics/15 There is further irony in this comparison of Australian and Canadian attempts to grapple with the concept of modern citizenship. If Australian parliamentarians see participation as the principal means of inclusion in a society in which a universal citizenship is suspect, their Canadian counterparts (or at least a majority of them) champion participation 'by individuals in the life of the community' to achieve a 'sense of belonging/16 The means are the same, the ends different: participation is promoted in Australia as an escape from uniformity, in Canada as an opportunity to find it by becoming part of an elusive whole.

Citizenship 179 Citizen as Subject Responding to one of John Diefenbaker's unhyphenated-Canadian speeches in 1958, Andre Laurendeau expressed concern at public attitudes which, outside of Quebec at least, treated ethnic origin as a matter of declining importance. Traditionally, he said, 'our country [had] ... not welcomed mixing races, and [had] refused assimilation/ and he warned that 'any unity achieved by cultural deracination would make us dangerously like the Americans.'17 What William Lyon Mackenzie had approvingly called 'rational freedom/ in emulation of the United States, Laurendeau a century later saw as a cultural threat.18 A variation on this theme has been played many times in Canada. The significance of this particular incident, however, lies not in its expression of Quebec's sense of vulnerability to the majority but in the occasion that gave rise to the warning: the prime minister's expression of pan-Canadian sentiments and the associated unwillingness of the then Dominion Bureau of Statistics to include a question about ethnic origin on their census forms. The prime minister's comment as much as Laurendeau's rejoinder confirms what leading intellectuals have frequently said (and still say): Canada is 'too divided in attitudes and feelings and climates and everything else to have a single outlook' (Robertson Davies); its development is tantamount to 'a huddle of regions growing into a country' (George Woodcock); 'its primary aim [has been] the collective survival of the particularisms that animate it' (Kenneth McNaught). 19 The sense of these remarks and of Diefenbaker and Laurendeau's is that Canada did not, and in Laurendeau's mind should not, have a unifying set of values or consciousness. What does citizenship mean in such a situation? Can there be a healthy sense of citizenship where there is no informing agreement? Does the form of government - a republic or a constitutional monarchy - make a difference to the answer to these questions? These are important matters, yet before turning to them, it is necessary to examine the development of earlier citizenship concepts in Canada. The Diefenbaker-Laurendeau interchange might lead to the false conclusion that before the middle of this century Canadians were bereft of a concept of citizenship. In fact, they carried two concepts. Political and societal changes undermined the premises on which each vision was based - which partly explains John Diefenbaker's advocacy of a pan-Canadian approach to citizenship in the late 19505 - but a residue of the attitudes these concepts fostered remains. The first was grounded in religion, specifically the Protestant faith. At

180 Part Two the end of the twentieth century it is easy to ignore the influence of religion on public attitudes (as opposed to issues of private morality, such as divorce or abortion), but for most of Canada's history, before and after Confederation, religious belief moulded public perceptions and actions. The Protestant depiction of the Quebecois as a priest-ridden people, the Canadian variant of the long-standing English association of Catholicism with 'alien, absolutist regimes/ failed to acknowledge the central position of the clergy in non-Catholic communities as well. And not only in religious matters, for minister and pastor and Anglican priest acted as dispensers of guidance and intelligence on secular as well as theological matters.20 In itself and in the nineteenth century, this perhaps is not remarkable. But Canadian Protestants had a mission and a means, or, in this context and more accurately, a method - the Methodist Church. There is a substantial literature on the nonconformist churches in Canada, and from a number of them it is possible to infer the political consequences of religious activity. Yet political scientists have ignored religious organization as a basis for political allegiance. In light of the national and federated structure of these massive institutions, this scholarly omission is unfortunate. Even passing references to political events suggest the potential of this neglected field: 'Inspired by her evangelical Methodist faith she [Nellie McClung] applauded the Canadianization efforts of All People's Mission, the battle to overcome the liquor traffic, the drive to rescue the prostitute, the demands for factory reform and the crusade for woman suffrage' (Veronica StrongBoag); ['o]nly the common national ideals which they [the Protestant clergy] could create would give Canada the sense of community it needed' (Mary Vipond); Lome Pierce (editor of Ryerson Press, 1920-60) 'was inspired by a nationalism rooted in his Methodist upbringing and education' (Sandra Campbell).21 These examples demonstrate that some Methodists and Protestants generally believed in a 'Protestant civilization,' one whose duty it was to assimilate new immigrants and to espouse the 'ideal of "Christian citizenship."'22 After the clergy-reserves question was settled, Canada did not have a formally established Protestant church. De facto, the Methodists assumed this mantle. This was not a new conception of their role: in the early decades of the nineteenth century Egerton Ryerson had worked to dull Mackenzie's radical appeal and prove himself a friend of order, and at the beginning of the next century the 'religious nationalism' of the Methodist Church placed it once again at the extreme centre. The significance of this Protestant ascendancy was that it was uniquely Canadian:

Citizenship 181 The character of this ... nationalistic religion, was neither a simple carbon copy of similar responses in British and American Methodism, nor was it a confusing hodge-podge of sporadic responses to mushrooming industrialization, urbanization, and alien population growth. It contained within it much of the doctrinal freedom and social consciousness of the so-called Social Gospel, but in a sense it was a wholly different species from its British and American counterparts. It rested upon the same minimal framework of scriptural principles, but it was more passionately nationalistic, more strongly motivated by positive goals of national destiny. 23

The Christian citizenship that the nonconformist churches propagated was not of another world. At its base it practised a political value much prized by Canadians - majoritarianism. It was through voting that the Methodists proceeded to church union, that is, the founding of the United Church of Canada in 1925, in company with Congregationalists and a majority of Presbyterians, and, as a recent history states, "there was a general belief that Methodists should follow the will of the majority.'24 In their attachment to the popular will, the Methodists spoke most emphatically for what the Saskatchewan Department of Education described, in a publication honouring Canada's fiftieth anniversary, as 'the Confederation spirit.' 'Needless to say/ it said, that spirit was 'British/ for 'majority rule is a distinctly British principle' along with 'tolerance, good will, recognition of the convictions of minorities, compromise and forbearance, combined with sympathetic fairness.'25 These sentiments found favour especially among the organized farmers of the Prairies, in both plenary and women's sessions: 'Mobilized citizenship [was] the only hope of future civilization/ be it viewed from an international, national, or local perspective.26 'Rural reconstruction' especially required 'rural democracy/ and as late as the mid-i93os, The Social Credit Manual pledged to distribute the controversial dividend it promised, in part, 'as a bare support of citizenship.'27 The church militant, carrying the banners of social action and individual responsibility, transmitted one concept of citizenship to millions of Canadians. It said little about inclusiveness, except through Christian conversion, but a lot about equality and duty. A checklist of the goals of Christian citizenship and character education as conveyed through the curriculum of a department of education like Saskatchewan's in the inter-war period shows much overlap: 'the dawn of the community idea and spirit' (Grade 4); 'organizing for community helpfulness (Grade 5); 'all citizens are mutually dependent upon the work of others (Grade 6);

182 Part Two 'your right is my duty' (Grade 7).28 The churches and the schools made common cause in Canadianizing the immigrant, although in Mary Vipond's opinion, the church proved 'the more important' agency. As the basis for this judgment she cites the churches' view of the task as 'a moral and spiritual process/ one that went beyond 'simply a matter of learning English.'29 As well, she might have noted in the matter of citizenship that while the United Church of Canada and its founding denominations saw as their secular job 'to mould Canada as a nation,' the schools had always to serve a second master - the Empire. Subjecthood, the second concept of citizenship, at the very least undermined if it did not contradict the perception of a national citizenship. Of course, the tension was never publicly admitted. On the contrary the two obligations were interpreted as complementary: This imperial feeling will also help us in our national affairs, for it will enable us to be sympathetic with our fellow citizens.'30 Indeed, until late in the last century the national option went unrecognized: Canada would be British or it would not survive (an opinion which George Grant, Canadian nationalist and philosopher, continued to hold but not with any optimism of realization, a century later). Proximity to the United States made Canada a lost cause if not a lost colony, and for that reason there was no 'alternative rhetoric' to the Loyalist appeal.31 Nor was there an indigenous history to employ as a counterweight. James T. Shotwell, later a prominent Columbia University historian, remembered growing up in Strathroy, Ontario (near London), where until the last decade of the last century Canadian history went untaught: 'There was a special reason for the relative lack of interest in Canadian history, for the early age had been French, and to us in Western Ontario that meant almost a foreign past.'32 The memory-nation was British or, more often, English, the anniversaries and heroes drawn from that provenance. More than that, English-speaking Canada actually supplemented this patriotism by introducing Empire Day in 1899, thereby superimposing love of Empire on love of country. George Ross, Ontario's then minister of education and the official originator of the celebration, dismissed any idea of 'antagonism' inherent in the telescoping of allegiances: The one is but an expansion of the other.'33 The American champion of the public school, Horace Mann, understood the necessary link between elementary education and national patriotism: Tt may be an easy thing to make a Republic, but it is a very laborious thing to make Republicans.'34 How much more challenging to produce a dual patriotism, especially in the quarter-century before 1914,

Citizenship 183 when the deeds and exploits of imperialism outshone even the expansion of Canada's national domain. The rounding out of Confederation, just as the completion of the Canadian Pacific Railway before it, filled in the blanks, so to speak, of the Empire. And those blanks were coloured red, as thousands of Canadian children could attest from the Neilsen Chocolate Company's Mercator projection maps that adorned hundreds of the country's schoolrooms. The extent of the Empire surpassed the spread of country. The symbolic ambiguity represented by the celebrations on 24 May and i July did not matter yet. What mattered to Canada's educators and elites was Canada's distinctiveness in North America, and for that, as one scholar has written: 'It may ... be enough to be different only on maps.'35 In the classroom Canadian children learned about citizenship not of Canada but of the Empire. With St Paul (and with suitable emendation) they were told that they, too, could say: 'Civis Romanus sum.' The essence of that citizenship was security: To be a citizen of Rome was to be under Roman law, and to be under that law was civil liberty in the highest degree ... That liberty lies not in action and participation in politics but in such protection as the law gives to the free against all who would take away from them what the law allows them, even if the would-be taker is an officer of the state.'3 Two millennia later on the Canadian Prairies the same lesson was taught: 'Where the Union Jack flies, we know no man can be a slave. Wherever the flag flies everyone must be free.'37 And it flew over more territory than any other flag: '[I]n the British Empire there is every kind of government from the most highly popular to the most despotic. But whatever the form, Great Britain endeavours to administer it in such a manner as to make possible for each of the vast number of races and tribes under imperial sway the greatest amount of happiness and prosperity.'38 From palm to pine, through textbooks, maps, and school broadcasts the diverse world of the Empire appeared, where Britain brought but would, if necessary, sacrifice good government for colonial self-government. One flag, one fleet, one throne, one family. The symbols were not as obtrusive then as they seem now, the idea behind them even less so. Canadians (and fellow subjects) were citizens of the world; they were the equal of anyone. The word "colony" we do not like, and we usually speak of ourselves as a "nation."'39 So said Canadian Civics, a popular primer that first appeared in 1910. A nation, perhaps, but not self-consciously so; citizens, perhaps, but subjects too. By qualifying and limiting expressions of nationalism, the Empire

184 Part Two reinforced existing Canadian sensibilities. Arguably, and not just because of the interpretations of the Judicial Committee of the Privy Council, the Empire contributed to the provincialization of Canadian life. Following the First World War, the Empire crumbled constitutionally 'under the logic of self-determination' and in the face of post-war sentiment for internationalism and co-operation.40 The impact of the Great War on the development of a sense of citizenship lies beyond the boundaries of the current discussion, although it is hardly unrelated. That is true for Australia as well as Canada, as a reference to Gallipoli or Vimy Ridge will suggest. Canada has no shrine to compare in size to the Australian National War Memorial in Canberra, or its Victorian counterpart in Melbourne, but it does have at the heart of its national capital the Peace Tower (with the War Memorial Chamber) of the centre block of the Parliament Buildings and the National War Memorial, the only 'nonrepresentational' (that is to say, symbolic) monument in Ottawa. Across the country, community cenatophs and 'roads of remembrance' to memorialize Canada's fallen became associated with the human costs of war in the minds of a people C.P. Stacey has described as 'unmilitary.'41 According to the theory, citizen militia guaranteed republics against internal seizures of power or external attack. The First World War and the conscription crisis that fractured national unity helped instil distrust of military training (as witness scattered opposition to the school cadet movement), while it helped found a spirit of internationalism.42 The roots of that spirit lay in what had gone before: the noninsular tutelage of imperialism and the purposive citizenship promoted by the Protestant churches. What Margaret Prang has identified as 'the rebirth of the Canada First movement during the 19205,' in the form of institutions retrospectively associated with modern English-Canadian nationalism for example, The Canadian Forum, the Canadian Institute of International Affairs and, later, the adult education movement - injected a dominant nonimperialist tone to public debate.43 It was as though the distinction which the French made early in their Revolution, between 'active' and 'passive' citizens, had come to Canada, if only in muted form.44 The construction of a 'national consciousness' in the arts as well as in politics had begun and, with it, said F.R. Scott, 'the sense of Canada as an autonomous North American nation.'45 Autonomous from Great Britain, which was constitutionally the case after the Statute of Westminster 1931, but also militarily. Fear of being dragged into a European war because of ties to Britain, talk of neutrality should the occasion arise,

Citizenship 185 pursuit of a reinvigorated League of Nations to prevent the worst from happening - while by no means universal sentiments these objectives illustrated the distance Canada had travelled from subject status. How much further she had journeyed on domestic ground could be seen in the work of the Canadian Broadcasting Corporation and the National Film Board. The acceptance, indeed even promotion, of Canada's 'racial variation/ by which F.R. Scott meant the French fact, owed much to the Canadian government's response to the technology of the age. The twonation theory that has so exercised some Canadians ever since the terms of reference of the Royal Commission on Bilingualism and Biculturalism were released in 1963 has its origins in the promotion of a national consciousness in the 19205 and 19305. And its source lies within English- not French-speaking Canada.46 How much this national consciousness expressed aspirations arising within central Canada and, to the degree that it did, how much it then contributed to the regional strains of the federation (and not only between English- and French-speaking Canadians) is a matter for another study. For the moment, the importance of this development lies in the context it provided for the third stage of Canada's transition to a modern concept of citizenship. The pivotal issue was once again war, which began in 1939, and the loyalty of the so-called foreign-born, that is, those Canadians who were of neither English nor French 'origin.' The highlights of that story saw the creation in 1941 of a Nationalities Branch within the new Department of National War Services.47 The task of the branch was to influence and coordinate the activities of foreign-born organizations on behalf of the patriotic cause; in short, the branch was, as its records say, 'to Canadianize' these people and, at the same time, to promote an understanding of them among English and French Canadians. Significantly, to penetrate 'the jungle of the foreign-born' (officials complained that these people were 'clannish' and 'over-organized in a non-Canadian sense') the branch depended upon the work of government agencies, like the CBC and NFB, and of 'non-official societies,' like YMCA and the YWCA.48 In other words, the enterprise was an orchestrated undertaking that extended far beyond government. The contribution of national registration under the National Resources Mobilization Act, 1940 and of seven Victory Loan campaigns in mobilizing the charter language elites has never been explored by political scientists in Canada, but it is clear from the research of Leslie Pal that momentum begun in these activities carried over into work with the foreign born. This was a necessary con-

i86 Part Two dition if the branch's goal was to be realized: 'Our magnet for attracting the foreign matter, like steel filings, from our outer edge to our centre must be a dynamic and cohesive national mysticism for Canadianism and for Canada.'49 The primary records and Pal's interpretation of them are strikingly consistent about one feature of the work of the Nationalities Branch: although the branch might be set upon Canadianizing the foreign born, it did not confuse that objective with assimilating the non-English or non-French. In the branch and, even more importantly, out of it - in Parliament, when the branch's appropriation was being discussed - majority opinion wished, says Pal 'to simultaneously celebrate ethnic and linguistic diversity while holding that this celebration in itself displayed a degree of tolerance and good will somehow uniquely expressive of the true Canadian character. Real 'Canadian-ness' therefore would consist in maintaining one's ethnic identity beneath some lofty canopy of shared loyalties and aspirations.'50 That perception suggested how far attitudes determinative of citizenship concepts had changed in half a century. Why they had moved in this direction, and why at this time, is less clear (and less important to the present discussion). In 1941 the government set about 'moulding the character of the country' and it continued in this light through the debate and adoption of the Citizenship Act, 1946. Paul Martin, the acknowledged father of the Act, believed that citizenship would provide 'an underlying community of status for all our people in this country that helps bind them together as Canadians.'51 'Community,' 'status/ 'bind,' 'together/ 'Canadians' - here at last were the lineaments of the citizenship toward which Canada had been moving: Canadian not English, national not imperial, 'underlying' not overt. There was some privileging in the 1946 Act - preferential treatment was given to British subjects in the matter of procedures followed to become Canadian citizens - but these were removed in 1976, as was the status of 'British subject' for Canadian citizens. Hereafter, they became citizens of the Commonwealth. Citizenship by Design The search for a civic connection begins with the Citizenship Act, 1946. The wartime policy of acknowledging group difference in the expectation that group loyalty would follow assumed a civilian face as Canada entered a post-war era of massive immigration. The sense of a received citizenship was replaced by a self-conscious act of citizenship on the

Citizenship 187 part of both the bestower and the applicant. In his first public address after the Act's passage, Louis St Laurent had asserted that 'a constructive national consciousness has to be built/ and the crucial emphasis in that important pronouncement lay in its verb.52 In future, citizenship by design was to be the Canadian way. The calculation implied by that phrase is not intended either to disparage the policy or to suggest that calculation had been absent from citizenship-related activities at an earlier date. The manipulation of the franchise to exclude as voters categories of persons on the grounds of race or national origin was well established. Nevertheless, a policy and a branch of a government department now undertook to make citizenship both a 'constructive' and a priority activity. Two points are worth noting about this initiative for the light they throw on subsequent developments. First, from the beginning government was a principal actor in the construction of citizenship. At the outset there may have been no talk of entitlement per se, but equally, there was never any doubt that citizenship was a public good on which public resources were destined to be spent. In this regard, the contrast with the United States, where citizenship even when orchestrated by government emphasized individual self-reliance, is strong.53 Second, neither in 1946 nor at any time thereafter did the citizenship enterprise embody an ethic. Absent in other words was what Dennis Duffy terms 'a moralistic vocabulary.' 54 In light of the war-time context that gave it birth and the experience of other countries with whom Canada is culturally close, this constitutes a significant omission. Judith Shklar, for instance, has noted that in the nineteenth century the veterans of the War of 1812 gave a 'powerful stimulus' to American democratic values, leading, she says, to the eventual 'abolition of property qualifications for voting and [to] equal representation according to population.55 Nor was the United States unique: soldiers, citizenship, and voting proved a potent mixture of elements in English politics from the Civil War onward. The explanation lay in Anglo-American attitudes: in these countries, as opposed to continental European states, freedom from military service was treated as 'a positive value of citizenship.' The counterpart to that freedom was the obligation to serve when your country needed you. In J.L. Granat stein's phrase, military service constituted one of the '"hard" obligations of citizenship/ and the conscription crises Canada faced in both world wars signified her failure to inculcate 'citizenship ... values' sufficient to instil this necessary sense of obligation.56 No doubt that is true, but hundreds of thousands of men and women did volunteer and the

i88 Part Two question is, what drove them to enlist? In Canada, as in England, it is evident that nonconformist citizenship made its own appeal to duty, thus contributing a powerful stimulus to the cause.57 However, Canada's dilemma then, and later in the matter of articulating an ethic of citizenship, should not be minimized, although it can be succinctly stated, as it once was by Andre Laurendeau. For nationalists like himself, he said: 'Our heroes [from the beginning] were the conscript, the nay sayer, the rebel.'58 If military references posed a metaphorical minefield, and if the Empire and organized religion were in different stages of retreat as sources of patriotic inspiration, what remained to incite civic spirit and allegiance? For the first dozen years after the war, the answer would have to be a combination of, first, nation-building activities - concrete in the form of seaway, causeway, and highway, or intangible, as in advances in constitutional status (for example, ending appeals to the Judicial Committee of the Privy Council) - and second, a citizenship policy aimed at those who desired to become rather than those who were citizens. The citizenship education programs that had been developed in the early 19005 were primarily for non-English speaking immigrants of European origin and focused on 'civilizing' them by acquainting them with the language, customs, history, and political institutions of Canada. These programs helped maintain the stratification of the society in two important ways: by insisting from the outset that only those of non-British origin needed to be trained to be part of the society, and by teaching immigrants about the superiority of (British) Canadian ways. Citizenship education programs developed after 1946 concentrated on Canada rather than Britain and the Empire but in other ways bore a remarkable resemblance to programs of the earlier period. Thus citizenship education continued to promote a stratified rather than egalitarian plural society.59

In 1960 John Diefenbaker championed the Bill of Rights in part as an advance in civic consciousness for all Canadians; indeed, the bill's pedagogical potential among the young was celebrated by Diefenbaker as one of its chief virtues. But it was the terms of reference and then the Report of the Royal Commission on Bilingualism and Biculturalism that isolated the elusive ethic and served notice that the civic hiatus was at an end. Following on the Report, the Official Languages Act, 1969 marked the beginning of a new era of Canadian citizenship, with Pierre Trudeau its

Citizenship 189 visionary. From that moment ethnicity was overtaken by citizenship as the transcendent ethic: 'a bilingual Canada united through a civic conception of citizenship' became the formula for fusing (but not integrating) the country's historic fragments.60 Here at last was a framework to make everyone a Canadian, as witness the fourth objective of the 1971 Multiculturalism Policy, in which the government committed itself to 'continue to assist immigrants to acquire at least one of Canada's official languages in order to become full participants in Canadian society.'61 The radicalism of the Trudeau option lay in several quarters, though nowhere more so than in its rejection of a consociational idea of citizenship secured from below, a conception rooted in the central experience of Canadian history and evident even before the founding of the federation, as in these sentiments of Joseph Cauchon: 'Mais 1'homme ne rompt pas facilement avec ses croyances, avec ses institutions, ses habitudes, ses moeurs et sa nature morale enfin, qui naissent invariablement de ses croyances et de ses convictions religieuses; viola pourquoi les Canadiens - franqais sont stationnaires et monarchiques par excellence.'62 As argued in earlier chapters of this study on participation and representation, recognition constituted the core value of that system. In this respect, the citizen claimant looked no different than the claimant for representation. At least, that was the case in Canada; republican theory in the United States dictates that citizenship is conferred on individuals from above and, therefore, necessarily equally and to all. Thus the positions in the two countries could scarcely be more opposed. Practice does not always bear out differences in theory, as Judith Shklar admits, but, as she also demonstrates, American citizenship has invariably been debated in terms of individual achievement.63 The majoritarianism implicit in the Trudeau government's civic conception of citizenship had a forerunner in the majoritarianism inherent in the earlier concept of a Christian citizenship dedicated to Canadianizing the alien. The difference between the approaches - and it was a crucial one - lay in the threat posed by the Trudeau initiative to the consociational base of Canadian society. Regardless of the opponents, that threat was always seen as the same - the elevation of the individual over the group. From this perspective there was not a great deal of difference between the early promotion of participatory democracy as a means of empowering the citizen on the one hand and enthusiasm for entrenching civil liberties, which ultimately took the form of the Canadian Charter of Rights and Freedoms, on the other. Opposition to this reconstituted vision of citizenship appeared quickly, beginning in 1969

190 Part Two with First Nations' rejection of the federal government's White Paper on Indian Policy. The White Paper proposed to disband the Department of Indian Affairs and to introduce policies that would treat 'all status "Indians" ... as "Canadian citizens" by breaking up the reserves, terminating the treaties and down-loading all federal responsibilities for status "Indians" to the provinces.'64 Canada's post-war policy of heterogeneous immigration produced the same effect on another historic component of its demography: The enlargement of the space occupied by these "New Canadians" plays a major role in the transformation of the national consciousness in Canada since the nationalism of immigrants tends to be civic rather than ethnic ... [T]he allegiance of newcomers goes to the source of citizenship rather than to the regions ... [T]his is also translated into a challenge to Quebec's ethnic nationalism.'65 Succinctly stated, the common complaint was that majoritarianism marginalized minorities. Moreover, this reified citizenship (Laurendeau's deracinated culture) did not occur in isolation. The 19603 was a period of unprecedented social upheaval: protests against the Vietnam War and Canada's military association with the United States, the women's movement, a new personal morality, and technological change with global implications contributed to a mood of rebellion, particularly among the young. Looking back a decade later to 'the attack on the authority structure of Canadian society' that those events represented, S.D. Clark sought to explain their origin and their strength. If Canada has a reputation for being a quiet country, the reason was that for a long time it was also a 'highly closed society.' Economic monopolies, a vertical mosaic of cultures, an outflow of population, and the perpetuation of traditional attitudes about family and private life meant that Canadians experienced 'few opportunities to escape the reach of established authority.' The rate of social change after 1945 - due to immigration, foreign investment, and an explosion in post-secondary education - created an unprecedented potential for disruption in a society whose 'authority structure was rigid.' Certainly more rigid and more tolerant of exclusion than the United States.66 Although there is no reason to doubt the accuracy of this assessment of the turbulence, its importance as far as the subject of citizenship is concerned lies elsewhere. The idea of citizenship, as opposed to a sense of belonging, is an intellectual construct, the meaning of which is metaphorical as well as legal rather than emotional in content. For this reason the concept of citizenship depends for its manufacture upon the arts and

Citizenship 191 the academy, and 'particularly the structure of universities and their relationship to the larger society' for its propagation.67 In contrast to a consociational identity derived from below, citizenship depends upon instruction and communication from above. The creation of a 'bilingual Canada united through a civic conception of citizenship' proceeded through policies such as bilingualism and official minority language education; through initiatives like the Court Challenges Programs, which initially promoted federal financial assistance to litigants seeking to clarify the scope of constitutionally protected language rights; and through the extension of radio and telecommunication services in the two official languages.68 Notwithstanding the fact that Canada is a federation with two official languages, where education is a jealously guarded provincial area of jurisdiction, education and culture have proved to be fundamental to the construction of Canadian citizenship from the centre. For a country that has experienced constant strain to its unity for the past four decades this must count as an achievement. The explanation is to be found in Canada's unrepublican-like federation and constitution. Nathan Glazer has said that the United States is a federation of states, while he calls Canada a 'federation of peoples.'69 The discussion in the previous chapter on federalism bears out the first part of that claim: that the states were the basic units out of which the federal union was created and that together the states constituted the United States. There seems no question either that the states were the right unit for the republic or that the Union was a federation of republics until the Civil War. Citizenship was not immune to this construction: if, as Shklar says, the right to vote along with the opportunity to earn were 'the two great emblems of public standing/ which was itself the irreducible meaning of citizenship, then the states were determinative actors, since they controlled the franchise. In fact, and quite the reverse of Canadian experience, 'alien suffrage was a drawing card used by the western states to attract foreign immigrants.'70 The American theory of republicanism mandated this state-centred federation. However, the same chapter demonstrates that Canada's federation was different. It is not Canadian usage to speak of the 1867 arrangement as a federation of peoples, but it would be equally unconventional to assert that it was federation of provinces in the American style. For a start, the national institutions appeared almost aggressively unfederal in construction. The Empire and the common Crown at the federal and provincial levels of government unified the parts and in the matter of allegiance and citizenship

192 Part Two blurred the internal boundaries of the federation. True, immigration was a shared power, but that was largely a pragmatic decision in the i86os, to reflect the manpower concerns of the single other shared power, agriculture. Until Canada saw itself as independent and autonomous - which in reality meant from the time of the Second World War there was no developed sense of national citizenship. And when it emerged, it was substantially a reflection of Canada's growing international activities. Speaking to the Empire Club, Toronto, in 1949, Hugh Keenleyside, then deputy minister of mines and resources, spoke of Canadians having lost their inferiority complex' toward Britain and the United States: 'Citizens of no mean country' but residents too of a 'hard land ... not... won by weaklings,' Canada's 'armed forces in two world wars [had] given final proof of this quality.'71 Citizenship in Canada was an undisputed federal construct until it appeared to challenge the ethnic base of the country's historic constitutionalism. The perception of that challenge increased once Canada set out on its quest for constitutional reform in the 19605. Here again, and unlike the American theory of a republican constitution directed to promoting the common good, the Canadian experience was moulded by a desire to resolve a specific problem. In other words, to create a common ground of citizenship in order to bridge the internal cleavage in unity. The strategy followed was to elevate and, ultimately, entrench fundamental rights. The genesis of the Canadian Charter of Rights and Freedoms is well documented and requires no repetition here, except to underline that the Charter and the three-decade debate that preceded it awarded primacy in this matter to the central government. And the reason they did so was because rights were deemed to inhere in that government as a consequence of its citizenship responsibilities. As early as 1951, a decade before the Quiet Revolution and the challenge it posed for centralist assumptions about Canadian federalism, the Supreme Court of Canada was linking liberties, citizenship, and the federal government: Laskin argued strenuously that the political liberties were a matter for exclusive federal legislative competence. The specific heads of explicit federal power upon which he relied most heavily were criminal law, and naturalization and aliens. He based his theory upon the conception that certain fundamental rights were inherent in Canadian citizenship, relying especially upon the decision of Rand J. in the Winner case, which, oddly enough, dealt not with civil liberties but with legislative competence in relation to interprovincial bussing. In this decision Rand J. spoke of the rights and duties attaching to the institution of Canadian

Citizenship 193 citizenship: The first and fundamental accomplishment of the constitutional Act was the creation of a single political organization of subjects of His Majesty within the geographical area of the Dominion, the basic postulate of which was the institution of Canadian citizenship. Citizenship is membership in a state; and in the citizen inhere those rights and duties, correlatives of allegiance and protection, which are basic to that status.'72

In the eyes of some constitutional interpreters, the Charter of 1982 did more than stake out the common ground of citizenship: it actually 'relocated sovereignty in the people.'73 Others did not go so far: the Charter, they said, 'enhances the status of citizenship and brings the citizenry into the constitutional order.'74 By Canadian standards, however, constitutionalizing citizenship constitutes a radical departure from tradition and practice no matter how interpreted. The effect is to codify, incorporate, and standardize that which has been subject to discretion and negotiation. Who became a citizen and who ceased to be one - to the extent that the concept possessed content, as in the right to vote - had been the subject of political determination alone. In 1982, and for ulterior unity reasons, citizenship became a constitutional matter. To this extent - that is, to the degree that the constitution publicly recognizes citizenship, protects yet does not monopolize, instead creating a distinction between itself and the private sphere - then the Charter could be said to establish for the first time the possibility of a citizenship with a republican character. By that is meant citizenship centred on law, for republics are about law and the societies that law creates. In the opinion of other commentators, the promise of the Charter was false. The Charter granted 'special constitutional status to various racial, ethnic, religion, gender, age and ability groups/ and in so doing it 'severed citizenship from its republican roots.'75 Republicanism can offer nothing to a politics conscious of anything but politics: for that reason identity policies are incompatible with republicanism because they acculturate that which must be neutral. This is not to say that identity politics are absent in a republic like the United States, but American politics are less amenable in theory and practice to the claims identity politics make. By contrast, Alan Cairns argues, in Canada 'the written constitution is ... a powerful symbolic statement of inclusion or exclusion.'76 The measure of citizenship advanced through the Charter does not lie in access to participation but in recognition of particularistic group identity: corporate not universal in extent, diverse not uniform in appearance. John Diefenbaker's call for an unhyphenated Canadianism

194 P art Two no longer resonates, and not only because Quebec's ethnic nationalism has grown stronger. Not just in Canada but throughout the developed world, what James Tully labels 'the empire of modern constitutionalism' is under attack.77 Its sin is to ignore difference and impose uniformity; as a result, modern constitutionalism stands against the politics of the age the politics of cultural recognition. Canada may not be alone in experiencing pressure to recast its view of constitutionalism; it is, however, unusually vulnerable because of the rising tension between the two founding European peoples and because of the growing desire of aboriginal peoples to achieve their own separate status within Canada, one which challenges the concept of a uniform citizenship. If the metaphor allowed, Canada's constitution is under pressure from still another direction as well: from all those other rights-bearing citizens recognized by the Charter who seek differentiated categories of citizenship for themselves. The particularistic nature of these groups lies not only in what they desire for the future but in their experience of the past. Here is a variant of the 'memory-nation' referred to earlier in this chapter: '[Tjhe constitutional past of yesterday's constitutional outsiders is ... a set of living memories that conditions their interactions with the state today.'78 But not all pressure is the same pressure; as Will Kymlicka and Wayne Norman demonstrate, pressure to recognize 'special representation rights' and 'multicultural rights' need not be treated as threatening. The basic impetus' behind this pressure, they argue, is 'integration, not segregation.'79 This is not to say that constitutional adaptation to grant rights will not lead to change - a case in point is Canada's experience with multiculturalism, a decade-old policy at the time it secured recognition in section 27 of the Constitution Act, 1982 - but adaptation need not lead to collapse. Group differentiation in the form of self-government rights is another matter, and neither Kymlicka and Norman nor any other theorists confidentially advance a proposition that will provide 'the source of unity in a multination country.'80 In these circumstances the attraction of shared values is obvious: they provide substance to an otherwise substanceless concept of citizenship. Perhaps because of this purpose, 'core values' favour the abstract and the passive, as witness the following list of values from a Canadian multiculturalism report of 1996: 'a belief in equity and fairness; a belief in consultation and peaceful dialogue; a respect for diversity; a recognition of the importance of accommodation and tolerance; a spirit of generosity and compassion; and pride [in] and respect for the environment.'81 The language of entitlement, the clientelistic relationship that the Charter

Citizenship 195 creates for specified groups, and the dependency upon the executive for protection and advocacy are characteristic of the subject of citizenship in Canada. (The executive is not the sole source of protection, for one of the frequently noted features of Canadian politics since 1982 is its purported legalization.) In the matter of rights, the legislature languishes - and not only because the courts are the institutions that interpret law. They languish because rights are viewed as possessions, because their holders see themselves as claimants, and because the legislative part of the constitution is static rather than expanding. The issue, however, is not only that group interests are particularized; they also are compartmentalized. For this the parliamentary system of constitutional monarchy is responsible. Possessed of rights but freed from having to defend their particular particularism in the only forum that can be deemed representative, the legislature, groups with rights seek to govern themselves. Does the republican model have anything to contribute to this condition of citizenship in Canada? To listen to American scholars one might doubt it. Michael Walzer, for one, takes to task those who bemoan 'the fragmentation of contemporary society.' He says they see no value in the fragments, because 'in their hands, republicanism is ... a simplifying creed.' Walzer argues that such interpreters of republican citizenship are astigmatic; citizenship in civil society cannot be reduced to a single element any more than it can be equated only to nationalism. Civil society, he argues, is something much different - it is a 'setting of settings,' a 'project of projects.' The reality, however, is that American citizens are 'spectators who vote.'82 Walzer is not the only critic to make this point; Christopher Lasch echoes him but then goes further: 'Vision is a spectator; hearing is a participator.'83 The point is that citizenship in a civil society is about becoming, not about maintaining. The citizen is a perpetual traveller. That is why an interpretation of citizenship as identity alone is incomplete, and why the claim that 'we all have our own Canadas' is inadequate.84 The theory of American republicanism emphasizes the sharing of activity - what writers frequently call public space rather than the sharing of resources, be they rights or social benefits. From this perspective, neither a social charter nor a welfare state provides the glue that citizenship requires.85 Politics as pedagogy is a familiar theme in the literature of American republican theory, the role of political institutions as teacher and schoolmaster a subsidiary refrain.86 Education and representation are constitutive elements in the moulding of citizenship, since they provide occasions for debate and argument. Nor is the private sphere devoid of

196 Part Two pedagogical opportunities, although its contribution remains contested. For that reason and in a discussion the focus of which is a comparison of constitutional regimes, the subject of nonpublic activity is best left unexplored. In the matter of politics as instruction, however, the contrast between the American republic and the Canadian constitutional monarchy is marked in one important sense: the political executive in Canada dominates the legislature and, as a result of party discipline, the party leader dominates the executive. As a consequence, the range of argument is constrained. Traditional interpretations of parliamentary politics see advantages in this narrowing of debate, because it simplifies policy choices. That may be true, but one of the costs of discipline is both the simplification and reduction of choices. From the perspective of politics as a medium of instruction consequent upon citizen activity, parliamentary performance is impoverished. It is in this context that the role of the courts following the introduction of the Charter assumes prominence. From the point of view of citizenship as participation, the question is not whether the judiciary or the legislature is the preferred institution through which to make claims on the political system. Rather, the issue is the low level of political control exercised over the courts. In this respect, and perhaps only in this respect, the courts offer a less restrained environment than Parliament. In this sense, too, the courts function metaphorically as the frontier Canada never had. Critics of the Charter speak in these terms when they depict the courts as exploring virgin territory or discovering new realms for jurisprudence. Yet this liberating environment expands citizenship and promotes participation as a substitute for what is increasingly seen as the artifice of legislative representation. The courts afford direct, even personal access. Nor will many be discouraged from taking this route when cautioned that it 'bypass[es] the moderating arena of electoral and legislative politics.'87 Whether courts build character, as was once claimed for open debate in Parliament, is a matter for reflection - if the answer is that they do, then it is also a matter for political revision - but there is little doubt that they help construct citizenship.88 And that too - as earlier parts of this chapter illustrated - is without precedent. Whether it is the bridgingtype of citizenship that seekers after Canadian unity desire is less certain. In his examination of Canada's Constitutional Odyssey, Peter Russell asks: 'Can Canadians be a sovereign people?' He concludes that they can, but only if they avoid 'all insistence,' and here he quotes Carl Friedrich, upon 'agreement on fundamentals/89

PART THREE

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8

Contexts and Contrasts

As with so much in its history, Canada's indigenous republican movement - Papineau, the Patriotes, and their heirs, for example remained a regional phenomenon. Indeed, the very fact that republicanism was identified most often with French-Canadian nationalism underlined its foreignness for the rest of the country. The short-lived Rebellions of 1837, the early acquisition and mastery of the mechanics of responsible government, the repeated linkage of republicanism with annexation to the United States, and the efflorescence of British imperialism in the closing decades of the last century displaced republicanism as a subject of debate. (The expanded franchise under the second reform bill, 1867, and Disraeli's imperialist adventures had the same effect on republican sentiment in Great Britain.) Ironically, the most eloquent exploration of republican government in theory and practice is found in correspondence between two individuals least likely to be found in any republic: Lord Elgin, governor general of United Canada, and Earl Grey, the colonial secretary. The occasion of the interchange during 1850 and 1851 was a remark in the House of Commons by the Prime Minister, Lord lohn Russell, to the effect that colonial status was 'provisional' and constitutional selfgovernment for the colonies a necessary step to 'independence.' Grey agreed with his leader but went further. In place of monarchy he proposed a republic, not on the lines of the United States constitution but following those promoted by radicals in events leading to the Second Republic in France: an all-powerful assembly with no more than a figurehead executive. In this arrangement, however, Elgin foresaw 'a Body without a Head/ where 'a temperate and cautious administration of

zoo Part Three public affairs [was replaced with] a reckless and overbearing tyranny, based on the caprice and passions of an absolute and irresponsible Body.' In his opinion harmony, freedom, and 'the rights of minorities' demanded nothing less than balance in the form of 'the Presidency of Monarchy.'1 While it is impossible to demonstrate that this exchange of letters exerted any influence on policy, it would be a mistake to dismiss the comments they contain as a mere expression of personal opinion. The letters were written at a time of constitutional uncertainty in France, most clearly, and to a lesser degree in Canada and Britain. The expanding franchise and its confirmation of political power in popularly elected chambers signalled the constitutional transformation underway. Nor were the comments limited to republican ideas and forms. Then, as a century and a half later, republican government was the obverse of monarchical rule. Elgin recognized this dualism, but unlike most of his contemporaries he understood its deeper significance for the mother country of which he was a privileged subject and for her colonies: Is not the question at issue a most momentous one? What is it indeed but this? Is the Queen to be the Sovereign of an Empire, growing, expanding, strengthening itself from age to age - striking its roots deep into fresh earth and drawing new supplies of vitality from virgin soils? - Or is She to be for all essential purposes of might and power monarch of Great Britain and Ireland merely - Her place & that of Her line in the World's History determined by the productiveness of 12,000 square miles of a coal formation which is being rapidly exhausted, and the duration of the social and political organization over which She presides dependent on the annual expatriation with a view to its eventual alienization of the surplus swarm of Her born Subjects?2

The way of Grey and Russell led to little England. The debate between supporters of that school of thought and its opponents who sought an empire is well studied. Less appreciated, perhaps, but crucial to this chapter are the constitutional implications arising from the Elgin alternative - an expansive sovereignty represented through the Crown and rooted in each of Britain's self-governing colonies. This is the tie that proponents of republicanism in Australia today wish to sever, as they seek to disengage that country from the constitutional arrangement Elgin championed and which, contra Grey and Russell, became the

Contexts and Contrasts 201 imperial norm. Australian republicanism underlines a frequently ignored distinction: countries like Canada (after 1763), Australia, and New Zealand grew up as colonies of British settlement. That origin is evident in their institutions, culture, laws, and independent monarchies (one monarch, it is true, but more than one monarchy). Parts of an empire, they were colonies with a difference. In the period of decolonization following the Second World War, the old dominions (minus South Africa after 1960) remained in a class by themselves for the reasons Elgin's question epitomizes. Still, there is more to the aristocratic interchange than this. In the absence of an American-type system of separate institutions with checks and balances to secure harmony, Elgin rejected as a substitute a parliamentary republic in which the legislature nominated the executive. This, he said, would be 'a Tyranny of the majority not the more tolerable because ... wielded by a Tyrant of many heads.' The executive would be no more than 'delegates ... exercis[ing] certain functions of legislative initiative.' The republic of the United States was a different matter. The only alternative to the work of the founding fathers at Philadelphia, however, was a monarchy, and he took his administrative superior but social equal to task for depreciating the role of the Crown in a system of constitutional monarchy: You talk somewhat lightly of the check of the Crown, although you acknowledge its utility - But is it indeed so light a matter, even as our Constitution now works? Is it a light matter that the Crown should have the power of dissolving Par', in other words, of deposing the Tyrant at will? Is it a light matter that for several months in each year the H. of Commons should be in abeyance during which period the Nation looks on Ministers not as slaves of Par' but servants of the Crown? Is it a light matter that there should still be such respect for the Monarchical principle that the servants of that visible entity yclept the Crown are enabled to carry on much of the details of internal and foreign administration without consulting Par' & even without its cognizance.3

These passages constitute one of the first occasions in Canadian political literature to acknowledge the distinction between nonexecutive and executive republics (that is, between the nineteenth-century French and the eighteenth-century American models). Here is a rare occasion when not all republican systems are seen as the same just because they reject monarchy. Again, the passages stand out for their explication of the

2O2 Part Three Crown's reserve power in a system dominated by parliamentary government. They make clear that the transition from a constitutional monarchy to a nonexecutive republic - what in Australia today is promoted as the 'minimalist' republican option - is less perfunctory than it might appear at first glance. Finally, dated though they may be in mode of expression and spelling, these passages are eminently modern in the constitutional concerns they address. How modern is evident when they are compared with the warning issued in 1997 by a recently retired governor of the state of Victoria, Richard McGarvie. Speaking of proposals to replace the Queen in Australia with either a directly or indirectly elected president, he said: Based on features of republics around the world, these imported models do not have a shadow of Australian experience to back them. It is not enough to say their features work in overseas countries and cultures. They may sound innocuous and all right in theory but are really changes of drastic potential. In the living reality of the political culture and constitutional practice of this country they would corrode and ultimately destroy our democracy. The debate has given hardly a thought to preserving our democracy. Our absolute priority must be to maintain our democracy in all its strength. It is a secondary consideration whether we do that under a monarchy or republic. The only choice we should make is between our present democracy within the monarchic system and that same democracy within the one republican model that will retain it. We must totally reject both models that advocate an elected republican president... ... The republic models for an elected president ... are recipes for disruption that would cost us our democracy by giving us an undismissible president. Their destruction of the basic constitutional convention [the governor general acts in accordance with advice from ministers of the elected government] is a fatal flaw. The notion that it does not matter because we could create a legally binding obligation to exercise powers as ministers advise, might appeal to theory but not to practical experience ... ... An elected republican president would lack other essential attributes. The system would not work with two rival centres of political power. The present system and its republican equivalent are designed to avoid the governor-general being actuated towards becoming a political rival to the prime minister through the mandate or authority that comes from election. Democracy requires that two of the basic parts of our system be chosen by elections - the parliament and the government. Equally it requires that the other two - the head of state and the courts - be not elected.4

Contexts and Contrasts 203 The reason for quoting at length McGarvie's opinion on republicanism is not to take sides in the argument but to emphasize the timelessness of the question - a point easily lost in the volume of literature spawned by the republican debate in Australia at the end of the twentieth century. Timelessness is a relative concept, however. Modern (nonexecutive) republicanism emerged two centuries ago in the French Revolution, while modern 'constitutional monarchies with ceremonial heads of state chosen on the hereditary principle [were] hardly known in Europe before the i83os/5 The idea of constitutional monarchy as an unchanging and historic form of government is but another example of an 'invented tradition/ To suggest that in the first half of the last century, a choice between king and president was a choice between the known and the unknown, or between the old and the new, is inaccurate since it reverses their respective lineages. Constitutional monarchy appears with the creation of Belgium as an independent nation in 1830, when a constituent assembly chose monarchy over republic, and with the election by the same body of Leopold I as King of the Belgians.6 Although the term constitutional monarchy has been used to describe the relationship between the British (and later the Canadian and Australian) monarchies and their respective parliaments, there is an important difference between them and the Belgian model. If the French and American republics may be labelled nonexecutive and executive, the same could be said of the Belgian and British monarchies. Monarchy in Belgium, as in the Scandinavian kingdoms, is derived from a sovereign people. The people legitimate the sovereign and not vice versa. The same might be said today of the monarchy in Britain and its former dominions, and as a description of popular perceptions of the political system in those countries, this might well be accurate. Still, this is not the theory of the constitution in those countries, and as evidence of that truth it is necessary only to cite the complexity the prerogative and reserve powers of the Crown pose for any move to a minimal republic. Nearly a century after Belgium's independence, the drafters of the constitution of the Irish Free State (1922) imitated that precedent by providing for a popularly constituted monarchy. In his study of that event, Leo Kohn signalled the exceptionalism of this arrangement: The effect of the innovation was to dematerialize the monarchical frame both in form and in substance.'7 The reader might fairly ask what the founding of Belgium has to do with Canada and its present-day constitution. The question has been put before, by George Brown, as little as twenty years after Belgium's

2O4 Part Three creation and at the very time Grey and Elgin were exploring constitutional forms. During one of the many debates in the Parliament of United Canada on the question of making the legislative council elective, Francis Hincks (Inspector General) cited Belgium's constitution to refute Brown's claim that two elected chambers would lead to deadlock. Brown retorted: 'Can the Hon. Inspector General take us to no other spot than Belgium for a constitutional system suited to the continent of America. Belgium! His colleague, the Commissioner of Crown Lands, carried us, a few nights ago, to Russia and Rome for illustrations of popular rights - and now we must go with the Inspector to Belgium in search of a constitution! Where will they go next -1 expect they will take us to the Inquisition for a model judicial system (cheers and laughter)!'8 Colonial and politically immature perhaps, the Canadians were never insular. Before and after the Act of Union, the debates of the Canadian legislatures offer ample evidence of interest in and knowledge of political happenings in Mexico, Texas, the United States, and Europe, as well as in Britain and the Empire. From an early date there was an inclination to employ what might be called the politics of analogy, sometimes in the negative: resolution 43 of the Ninety-Two Resolutions warned that 'the constitution and form of government which would best suit this colony are not to be sought solely in the analogies offered by the institutions of Great Britain.' It is a characteristic that continues into the present. For instance, Brown's exasperation in the 18505 with references to Belgium as a model to emulate is no different in origin or expression than Eugene Forsey's outcry in the 19405 against 'all references to other federations or to the nature of federalism in general.' These Forsey termed 'beside the point.' Similar, too, was his frustration in the 19605 with (the admittedly few) proponents of republicanism for Canada, who, he said, proclaimed republics as 'once more in fashion' (Forsey cited Guinea and Dahomey as illustrations), or 'somehow "freer" than ... a constitutional monarchy,' or more 'independent,' or more 'Canadian.'9 The predisposition of Canadians to see themselves in comparative perspective appears contemporaneously with Alexis de Tocqueville's travels in America in 1831 and 1832. (De Tocqueville visited Lower Canada in 1831, and a number of his own journal entries speak of Tanalogie entre les cas canadien et americain' or of la vieille France [et] la nouvelle.')10 The search for an external point of reference was the product of internal division, an awareness that the association of French and

Contexts and Contrasts 205 English was unique in North America and unusual elsewhere (Belgium being the most obvious analogue), and a realization that failure to make the geographically large and administratively cumbersome United Canada work would occasion heavy consequences. The Canadian debates make explicit that on all sides the Act of Union was understood to be an experiment and, while no one used the term, as much an adventure in constitutional engineering as the creation of politically neutral Belgium on the northern frontier of France. Edward Gibbon Wakefield reminded his colleagues in 1843 that 'every mail from Europe brought accounts which led us to apprehend what [the consequences of failure] might be.'11 The image of a silent, potent, slowly evolving British constitution, transported to the colonies, requires revision as far as Canada is concerned. The distinctiveness of the colonies along the St Lawrence could not be satisfied by a constitution of understandings and conventions alone. It required parliamentary intervention in the form of the Quebec Act, 1774, the Constitutional Act, 1791, the Union Act, 1841, and (to come) the British North America Act, 1867. Each of these statutes, which in any system but one of parliamentary sovereignty would qualify as organic, was explicable only in the context of Canada's unusual demography and history. Conscious of their distinctiveness, Canadians then and later proved themselves both inquisitive and pragmatic when it came to assessing constitutional examples from elsewhere. One of the leading advocates of republicanism in Australia, Malcolm Turnbull, has spoken of that cause as the final step to complete 'an unfinished work.'12 Canadians have never demonstrated such singleness of purpose or confidence in any aspect of their constitutional quest - except perhaps in their government's decades-long pursuit of independence within the Empire-Commonwealth. Laurier, the originator of the Canadian nationalist view, made clear during the Boer War: 'We are just as independent today, under the suzerainty of England, as we could be if absolutely independent/13 Canada found in the Empire-Commonwealth an association congenial to its needs, less in terms of trade, capital, or immigrants than for the constitutional sustenance it offered. Of course, the EmpireCommonwealth had no constitutional form - and Canada as much as any dominion resisted attempts to give it one - but that indeterminateness was part of its attraction. Circling the globe and encompassing governmental institutions of great variety and complexity, the associa-

206 Part Three tion of nations seemed infinitely expandable while undemanding in its conditions for membership. Self-determination presupposed non-intervention; thus Canada's quest for autonomy met little resistance.14 On the contrary, she became a model for others to emulate. In today's world of trading blocks and instant communication, the Commonwealth with its heterogeneous membership of fifty-one states (in 1993, fifteen governor generalships, seven monarchies, and twenty-nine republics), carries less influence than it once did. But its constitutional legacy for the three countries of British settlement (who are also monarchies) remains large. Canadian nationalism fed off the evolving Empire. Laurier, Borden, and, most of all, King used relations with Britain and the imperial family to promote Canadian independence by separating Canadian policy and allegiances from Britain. The contribution of the Commonwealth was the latitude it presented to blur the extent and impact of this activity. At a later date, the United Nations provided another opportunity to assert Canadian leadership, but in the period before the Second World War the Commonwealth was the preferred forum. Few thought Canada should abandon the family and 'go it alone/ Even Escott Reid, more radical than most of his diplomatic contemporaries, when he called in 1938 for Canada to 'secede from the empire/ saw need for some compensatory association like the Pan-American Union. It was never the Canadian way to speak, as Reid did then, of 'pass[ing] through the fires of a struggle for complete independence before that colonialism is burnt out of her system.'15 Under the aegis of a common Crown, power continued to be transferred but, in Commonwealth fashion, according to no predetermined plan: Canada for instance, acted immediately to take advantage of the terms of the Statute of Westminster in 1931; Australia waited until 1942. The idea of legal independence seemed both unnecessary and inappropriate. It is indicative of the gradualism associated with these events that when Australia's Republic Advisory Committee set out in 1993 to list the members of the Commonwealth, with their year of independence, only three presented a problem. As a footnote to that Report states: 'Opinions differ about the year, or the respective years, in which Australia, Canada and New Zealand became independent/16 The source of the uncertainty was the same for each of the former settler colonies: the goal of their governments had never been legal but rather political independence. 'Originally part of one system/ Leslie Zines has written, it was enough for each country to extricate itself in stages from the 'suzerainty' of which Laurier had long ago spoken.17 The result, as legal

Contexts and Contrasts 207 scholars have noted at the end of the century Laurier said would belong to Canada, is that 'Canada's legal independence is based neither on 1931 nor 1982, or on any decisive legal event, but is "at root a matter of fact."' 18 Here then are monarchies very different from that of Belgium for it could never be maintained that they exist from an act of popular will - but then they are also different from the British monarchy. To begin with, the sovereign in Ottawa, Canberra, and Wellington is an absentee monarch: the head of state in those capitals, the governor general, is head of state only in reference to another head of state, the Queen. Though absent, it would be a mistake to equate this arrangement with Lord Grey's republican and headless constitution. The Crown in each of these settler countries is as much embedded through the prerogative in its government as is the mother Crown at Westminster. Reluctant to codify the position and practices of their Crowns, the overseas monarchies pay homage to convention and in each a theory of constitutional monarchy has emerged out of local practice, and not vice versa. Appearances notwithstanding, a move to a republican regime in any one of these countries would mark a clear 'break in legal continuity.' Moreover, it would require the assertion of a new basic norm to inject meaning into the new legal order. While it may be arcane, this discussion is not irrelevant. Previous chapters have noted the more developed concept of 'the people' in Australian than in Canadian political and constitutional practice, so developed in fact that a Canadian constitutional scholar has argued that in '"republican" Australia it is the monarchy that represents the radically dislocated idea of authority.'19 By contrast and despite patriation of the constitution and the Charter of Rights and Freedoms, Canadians are not yet a sovereign people. But neither are they a subject one, if public comment is any guide. When Canadians talk about monarchy, which, except for royal scandals in Britain they almost never do, they refer to the fitness or otherwise of the appointee to the position of governor general or lieutenant-governor. Even then the commentary is cursory, although in 1996 and 1997 appointments of new lieutenant-governors in Ontario and Quebec received unusual attention. In Ontario, Hilary Weston became the province's twenty-sixth representative of the sovereign. An Irish-born businesswoman and wife of a billionaire, Ms Weston's appointment sparked comment about the influence of wealth, gender, and political partisanship on her capacity to perform the duties of office, but none about the symbolism of the office itself - mute testimony to how Canadianized the Crown had become. In

2o8 Part Three Quebec, after the resignation of the first appointee in 1996, Jean-Louis Roux, for student activity a half-century before (wearing a swastika on a lab coat), the appointment of Lise Thibault as the province's first female lieutenant-governor drew criticism only from its separatist premier: The function [of the office] is a sequel of a colonial regime/ Pledging allegiance to the Queen, Mr Bouchard said, 'does not fit with the democratic reality.'20 Such criticism of Canada's colonial past and monarchical present is heard rarely and then as a reminder of the conquest and subjection of the French to British power. More representative of the situation is this reflection from political philosopher Charles Taylor: 'As far as Canada is concerned, the monarchy is barely noticed and it isn't an issue. We certainly don't think of it as rule from elsewhere ... [T]he British connection has long ago shrunk to a minor fixture of our society, whereas it probably bulks larger in Australia.'21 The idea of monarchy as archaic and constrictive of political development is not borne out by the history of the Crowns in the old dominions. On the contrary, changes in the definition of the Canadian Crown have consistently promoted independence from Britain. Alternation of the office between French and English-speaking Canadians encompasses the dualism found in other national institutions, while the politicization of appointments has reduced the office's claim to independence. Australia presents a different case. For proponents of republicanism, the Australian monarchy stands as the last obstacle to independence from Britain. In the absence of an internally divided society, the potential of a presidency disengaged from Britain and from the government of the day in Canberra is attractive and understandable. That monarchies which share a common root can afford such contradictory assessments is testimony to the complexity of the constitutional positions these countries occupy. Commonwealth Precedents Ireland Ireland cut its links with monarchy on Easter Monday, 1949. Whether it became a republic at this time is less easy to say. For those who see republicanism as simply the absence of monarchy, that would appear to be the case - although the fact that after 1922 and the adoption of the Constitution of the Irish Free State monarchy was in retreat and ultimately in abeyance might occasion second thought. Ireland is an out-

Contexts and Contrasts 209 standing illustration of the truth that between appearance and reality can lie a shortfall in understanding. And understanding of 'the historical and political context within which ... presidencies [are] created' is, according to the author of a study commissioned by Australian's Republic Advisory Committee, 'crucially important.'22 That being said, it is not possible here to recount the long and complex history of Irish politics. For present purposes, which are exclusively constitutional in concern, the basic genealogy of the past two hundred years is as follows: first, while the United Irishmen under the influence of French revolutionary ideas once talked of a republic, Sinn Fein a century later talked of a dual monarchy comprising both the British and resurrected Irish Crowns; second, up to the First World War independence from Britain took precedence to republicanism as a sentiment among a majority of Irish people; third, the brutal suppression of the Easter Rebellion in 1916 marshalled support for a republic as a means of ending British rule, symbolized in the Crown and its agents in Ireland. This abbreviated and selective history is necessary to emphasize the larger point of this discussion - that the route to a republican option may be as important to the outcome as the option itself. In Ireland it led to a 'relationship between a head of state and his or her state's government' that one student has labelled a 'non executive or orphan model,' as opposed to either the 'nominal chief executive model' (for example, in Canada, where, under section 9 of the Constitution Act, 1867 'the Executive Government and Authority ... is vested in the Queen'), or 'the chief executive model' (the exemplar of which is the United States).23 The orphan presidency is the product of long distrust of executive power, manifested most vividly in the country's Declaration of Independence (1919), in which the Dail Eireann, acting as a constituent assembly, declared Parliament in effect 'the incorporation of all governmental authority.'24 It can also be seen in the Irish Free State's formal acceptance in 1922 of dominion status, with executive authority exercised by the Crown but modelled on 'the practice and constitutional usage of the Dominion of Canada,' and in the reality of what Leo Kohn calls a 'ministerial republic' under a 'static' sovereign - Virtual independence' was the phrase sometimes used.25 Finally, orphan presidency can be found in the atrophication of the executive under the constitution of 1937, to the point today that the Report of the Constitution Review Group (1996) speaks of the president as being 'freed from executive functions.'26 How free is suggested by the following features of presidential power in the Republic of Ireland: the president has no discretion in the selection and

2io Part Three appointment of a new taoiseach (prime minister) and government (a restriction the Constitution Review Group describes, with understatement, as 'quite unusual in parliamentary government systems') nor has he or she discretionary power to summon or dissolve the Dail except, in the latter instance, where the taoiseach has 'ceased to retain the support of a majority/ Because ambiguity surrounds the interpretation of this last phrase, the Constitution Review Group considered as an alternative granting the president absolute discretion to refuse dissolution. It rejected that possibility on the grounds that 'it would politicize the presidency by making the President a factor in the strategy of political parties/ Currently, and in the Group's eyes desirably so, the president is 'impeccably remote from party politics/ The Irish presidency is isolated from the government of the day and even from the public because it was intended that it be isolated. Ireland was not to be a 'minimal republic' in the sense in which the term is used in the Australian debate. Rather, it was to be as close to Lord Elgin's depiction of a headless republic as possible. James Duffy argues that Ireland never had a popular executive and as a result 'the psychological and symbolic role ... played by the presidency [was] shaped by the role played in public life by the Governor-General/27 Continuity of political culture despite institutional change is a maxim of some relevance when considering the transformation of monarchical regimes into republics. Before 1921 the Irish executive was perceived as illegitimate, and between that date and 1937, the symbolism of dominion-style constitutional monarchy was treated as 'meaningless' save for those benefits in external affairs derived from association with the Crown. After 1937 the status of Ireland can best be summarized as that of an 'externally associated sovereign nation/28 Monarchy's end in fact and theory did not rehabilitate executive authority in the eyes of the people, nor did another 'quite unusual' feature in a parliamentary government system direct popular election of the president. Since 1937 there have been ten presidential elections, although the public have participated only in five, since the constitution limits voting by ballot to elections where more than one candidate is nominated. Although local councils may nominate candidates, none has; former or retiring presidents may nominate themselves but, more usually, they are nominated by members of either house of Parliament. The effect is that party politicians compose the nominating bodies and presidential contests are consequently suffused with partisan calculations. The Constitution Review Group recommended that the nominating process be 'democratized' to the extent

Contexts and Contrasts 211 that the public on one hand or more members of Parliament on the other be in a position to moderate the influence of party hierarchies. In personnel and in selection the Irish presidency is thoroughly politicized. Until the election of Mary Robinson (with Labour support) in 1990, all presidents came from the ranks of Fianna Fail, with the principal challenger, when there was a contest, from the other major party, Fine Gael. Politicization of the selection process has had the paradoxical effect of accentuating the president's isolation. In an effort to minimize the appearance of partisanship in office, presidents curtailed their activity. Age has also been a factor, since the presidency is treated as the capstone to a political career now concluded. The overall consequence of these features is that the office is not normally invested with a strong republican ethos nor have its holders attempted to inject one. To some extent this characterization of the Irish presidency requires revision since Mary Robinson's surprise victory in 1990. Not a candidate of the major parties and younger than her predecessors in office, Robinson established an active, 'new-style' presidency through travel at home and abroad and involvement in publicized issues such as AIDS awareness and women's rights. In a uniquely Irish activity, she appealed to the nation's sense of itself as a mother country by making overtures to the Irish diaspora in, for example, North America and Australasia.29 Appointed United Nations High Commissioner for Human Rights, Mary Robinson did not seek a second seven-year term in 1997. Four of the five candidates to replace her were women who appeared set to imitate her style in politics. The winner was Mary McAleese, nominee of the republic's largest party, Fianna Fail. India

Ireland left the Commonwealth the same month she became a republic, April 1949. The decision was voluntary, since at the same time in London the Commonwealth prime ministers reached agreement on the conditions required to retain India, about to become a republic, as a member of the Commonwealth. At issue was the need to replace as the basis of membership the Balfour Declaration's reference (1926) to a 'common allegiance to the Crown' with a new formula: acceptance of the King as 'the symbol of the free association of its independent member nations and as such the Head of the Commonwealth.' Once again the Commonwealth proved flexible enough to realize a new constitutional ambition on the part of one of its members, but once again it was

212 Part Three not flexible enough to accommodate Ireland. This coincidence of opposing actions was somewhat ironic, says Nicholas Mansergh, since 'the actual phrase by which the membership of India as a republic was reconciled with the Crown as the symbol of Commonwealth association had ... Irish origins.'30 The allegiance question had troubled Anglo-Irish constitutional negotiations for a quarter-century and ultimately became unmentionable in official circles. Now, at last, it had disappeared, but its disappearance failed to prevent the Irish Free State from seceding from the Commonwealth. The taoiseach, J.A. Costello, announced his government's intention in an unusual forum - following a speech to the Canadian Bar Association in Ottawa in September 1948. Canada's national capital was not an inexplicable location for this announcement, however: in both its own eyes and those of fellow dominions, Canada was not only the senior member but the architect of the modern Commonwealth. A statement concerning the secession of one of its associates made sense in this locale. Ireland left because the political and religious associations of the Crown proved too repugnant to accept. India remained, despite her own legacy of imperialism, because there was no comparable antipathy to the Crown. Escott Reid, Canada's high commissioner to India on the eve of the transition to a republic, described for his wife a state dinner in New Delhi held to mark the occasion: 'I had a feeling that if they had been able to put off their decision for a year, they would have been so happy at working themselves the symbols of royalty that they might not have become a republic.'31 This was not an opinion shared by all of Reid's Indian correspondents, but the prominence, indeed popularity of the viceroy, especially Earl Mountbatten, the last of the line, plus Duffy's claim that there is continuity between the style of the Crown's representative and his or her republican replacement, offers some ground for Reid's interpretation. It is clear that the nature of republican government in India was to be very different from its nominal counterpart in Ireland. The members of the constituent assembly that drafted India's new constitution in 1947 (significantly, the Government of India Act, 1935 continued for the time being as the basis of government as far as was practicable in India and Pakistan) 'overwhelmingly [favoured] a constitutional head of state presiding over a parliamentary system.'32 As for the contrast between the Irish and Indian republican systems, the gerund says it all. Subsection one of article 12 of the constitution of Ireland provides that 'there shall be a President of Ireland ... who shall take precedence over all

Contexts and Contrasts 213 other persons in the State and who shall exercise and perform the powers and functions conferred ... by this Constitution and by law.' Article 13 (sections 9 and 11) repeats this limitation: 'No power or function [says section 11, for example] conferred on the President by law shall be exercisable by him [sic] save only on the advice of the Government.' Thus the Irish constitution faithfully reflects Irish history in dissociating the president from the government and, necessarily therefore, from Parliament. The discretionary power inherent in the Crown and the subject of the concern raised in Australia by Sir Richard McGarvie, quoted earlier in this chapter, scarcely exists in the office of the president of Ireland. This was not to be true of the presidency in India. Early in its history (October 1947), the constitutional adviser to the Indian constituent assembly, B.N. Rau, a senior member of the Indian Civil Service, travelled to the United States, Great Britain, Canada, and Eire. His mission was to examine the constitutional arrangements of the countries with whom India had the closest relations. More than a decade later, Rau wrote a book, India's Constitution in the Making, recounting the findings of his study tour.33 But that appeared ex post facto, since his advice, based on comparative analysis, had already been crystallized in the constitution of the Republic of India. Among the subjects Rau discusses and which are most pertinent to this book are assessments of the strengths and weaknesses of republican and monarchical forms of government, the variety of executive arrangements permissible under each form, the role of the courts and second chambers, and the styles of federal government, particularly with reference to the distribution of powers between central and local jurisdictions. On this last subject Canada proved as much a model for India as it had for Ireland decades earlier in the matter of the conventional exercise of executive authority by the representative of the Crown. For India, like Canada at the outset of Confederation, was to be a unitary state with federal features, an intent reflected in the use of the term 'union' to designate the Indian state. Rau and the vast majority of constituent assembly members rejected an American-style republic for the reasons usually offered by supporters of cabinet-parliamentary government: the separation of institutions and the rigidity that entails, despite the introduction of checks and balances to bridge the separation. Political tutelage and Parliament's example during the Second World War made a parliamentary republic inevitable: The strongest government and the most elastic executive has been found to be in England.' Part of the explanation for the elasticity was the discretionary power, the existence of which, though 'circum-

214 Part Three scribed/ according to Rau, 'no one can deny/34 Yet this is the very power the Irish had sought to excise from their republican constitution. The Trish precedents' to which Nehru, among others, referred were accurate only in the sense of offering a model for disengagement, that is, for asserting the independence and sovereignty of one country from another. As for the constitution of executive power, however, it was misleading to claim, as Rau did in his book, that 'the Irish executive is of the British responsible type.'35 The Irish president was not, as he implied, the republican counterpart of the sovereign. Unless the Indian constitution makers were to imitate the Irish example and codify the prerogative power, unless they were to require in law that the president of the new republic act on advice of the government of the day, then it was 'not possible to avoid vesting the discretion in the President' and, likewise, in the governors of states.36 Thus the Indian republic, in contrast to the Irish, 'felt that the matter should be left entirely to convention/ in the 'hope/ said India's first president, Rajendra Prasad, that the convention in England 'under which the king acts always on the advice of his ministers will be established in this country also and the President... will become a constitutional President in all matters.'37 The Indian president is chosen by an electoral college the members of which comprise both houses of Parliament and the legislative assemblies of the states. However, state governors are appointed by the president and hold office 'during the pleasure of the President.' Thus in addition to holding uncodified prerogative powers the president possesses a potentially significant discretionary power over state politics, one reinforced by the constitutional provision that empowers him to take over the governance of a state if so advised by the state governor or if he is satisfied that government of the state cannot be carried on in accordance with the provisions of the constitution. Unlike Article IV, section 4 of the United States constitution, which guarantees a 'republican form of Government' to every state, this comparable provision of the Indian constitution has been invoked more than once. Thus while it is true that both Ireland and India possess parliamentary systems and in each the cabinet and especially the prime minister is the determinative political figure, the position of the president in these republican constitutions is different - significantly so, since the studies commissioned by Australia's Republic Advisory Committee of these particular systems reveal a far greater politicization of the office of president in India than in Ireland. Indian presidents are not 'impeccably remote from party politics.' On the contrary, according to Noorani: 'It can be said without fear of contradiction that during Mrs. Indira Gan-

Contexts and Contrasts 215 dhi's Premiership, nomination to the Presidency became a gift in the bounty of the Prime Minister' - 'A sorry tradition/ he adds, that succeeded her years in office.38 The presidency is the characteristic feature of the republican character of the United States constitution. The same cannot be said of Ireland or India or of any parliamentary republic. Yet that difference does not mean that all parliamentary republics are the same. Ireland and India illustrate some of the variety on offer, variety all the more notable since they share a common constitutional experience. From the perspective of this study of republicanism, the point of interest lies in the fate of the prerogative. Where it remained, as in India, the office became politicized. It would be easy to suggest that this is the inevitable fate of a constitutional monarchy based on convention that becomes a republic. India is an immense and immensely complicated polity. Still, as the country's first president asked after a decade in office, how far could the conventions of hereditary monarchy in an unwritten constitution inform the behaviour of an elected president in a system based on a written constitution? According to Seetha Pathasarathy, Prasad (the president) 'questioned at every opportunity the assumption that the office of President was a carbon copy of the British monarchy.'39 Another decade later Indira Gandhi answered the question with a constitutional amendment that sought to narrow the president's discretionary power by requiring him 'in the exercise of his functions [to] act in accordance with ... advice' he received from the Council of State and the prime minister. But in the Indian - as opposed to the Irish - system where the president is part of Parliament and therefore has the power to summon, prorogue, and address both houses, to dissolve the lower house, to summon joint sessions in case of a deadlock, to appoint the prime minister, and more, the office cannot fail to be the subject of intense political consideration. This is not to say that the choice of president does not matter in Ireland - it does, as the discussion above indicated. The choice of president in both countries is a politicians' activity. But the reason it matters is different. In both countries the president might 'belong to' the political parties; only in India, because of the discretionary power still inherent in the office, could possession of the office threaten the government. Australia Australia is a republic yet to be. Unlike Ireland and India, whose lead-

216 Part Three ers were determined to have change, Australians are divided - almost evenly so. Republicanism's advocates speak of its inevitability, of the centenary of the Commonwealth in 2001 as the appointed date, but as of 1997, there is no certainty whether or when the translation from monarchy to a republic will occur. In contrast to Commonwealth precedents of half a century ago, or even of South Africa more recently, Australia is a country of British settlement whose founders, says John Hirst, a member of the Republic Advisory Council, brought 'the building blocks for the whole structure ... [whol recreated a British society here, a better Britain.'40 Theirs was the polity, the language, the pattern of work ... and many of the mental habits to which the [later] immigrants would have to adjust.'41 Australian republican sentiment is different from the Irish or Indian varieties, because Australia is different, different in the same way Canada (or New Zealand) is from countries who felt themselves oppressed. For these countries republicanism was essential to full independence. Of course, Canada did not begin as a British country, and a large portion of its population are descendants of the French colonists who passed under British rule in 1763. Nonetheless, the parallels between Australia and Canada are strong, not only in the contribution of British colonization and Empire but in the influence of continental geography, a resource-based economy, and a federal system of government. While there is no counterpart in Canada to the long history of republican sentiment in Australia, antipodean debate of the issue - the questions posed and the different answers offered - approximates more precisely the Canadian condition than does the experience of any other country that has pursued this constitutional objective. Canada and Australia share the twin strains of an English political tradition and the democratic ethos of a new world. This heritage explains why the word most often linked to the republican objective in Australia is the adjective 'minimalist.' George Winterton, the constitutional scholar who has written most authoritatively on the subject, agrees that 'the change to a republic would be more symbolic than substantive, so its greatest impact is likely to be psychological, enhancing Australians' sense of national independence and selfassurance.'42 All that would be required to convert 'responsible monarchical government... into responsible republican government' would be 'simply [to] replac[e] the Queen and the present appointive GovernorGeneral with an elected Governor-General (or "president," if that title were preferred), and leav[e] the remaining machinery as it is.'43 If, as the republicans argue, the Queen 'cannot... serve as the symbol of the Aus-

Contexts and Contrasts 217 tralian nation/ then with these modest changes Australia would gain a president who could.44 The minimalist tenor of the republican case conceals a subtle inversion in argument. The appeal made is not only that the distance between Australia's current de facto monarchical independence and a de jure republican state is short and easily transcended but that in becoming a republic Australia would be more faithful to monarchical norms than the status quo of a derivative monarchy permits. Currently, according to Hirst, 'Australians do not have a constitutional monarchy/ Witness the crisis of 1975, when the governor general (Sir John Kerr) dismissed a prime minister (Gough Whitlam) who commanded the support of the House of Representatives but could not secure passage of his government's supply measures through a hostile Senate. Whatever view is held of the correctness of the governor general's action in this matter and most republicans believe he erred - proponents of republicanism say that a president selected (and liable to dismissal) by some procedure other than appointment by the Queen on prime ministerial nomination would be in a stronger position than the governor general now is to protect the constitution. He or she would be 'above politics/ as the Queen herself is. In short, 'a President of the republic will have the security that Sir John Kerr lacked.'45 While the argument is attractive, since it suggests that at one level Australians can have both republican form and monarchical substance, it also has its critics. Among these is Sir Francis Burt, a former chief justice and later governor of the state of Western Australia. Burt's concern is that the language of minimalism finesses matters of substance. It makes a very great difference to the persuasiveness of the argument, he says, just what the answers are to such practical questions as the method of presidential selection, the definition and fate of the reserve powers (that is, whether they should remain conventional or be codified). Once these questions are answered, once there is agreement in advance about the structure and content of presidential power, then, he concludes, 'it would not in a material sense matter whether you made the change or not.' For this reason whether Australia is to be or is not to be a republic 'is all in the mind/ 46 Reference to the famous soliloquy is apt, since much of the literature on Australian republicanism advances the positions of one or other side of the debate rather than engages in a dialectic that results in synthesis. There are those who seek to go beyond the minimalist position of what they label 'cosmetic constitutional change/ who claim that their interest in a republican form of government is not motivated by nation-

218 Part Three alistic symbolism.47 They argue that if Australia is to move to a republican constitution, then this is the time to incorporate 'the people and their rights and aspirations' into that document.48 As noted earlier in this book and as observed repeatedly by what might be called the 'deep republican' advocates, Australia is a country where popular sovereignty can make a valid claim to recognition because of the procedure followed in drafting and adopting the constitution nearly a century ago and because of the amendment process entrenched in the founding Act itself. Australians are a sovereign people to an extent to which Canadians can still only aspire. To shift the focus of discussion in this direction, however, would be to change the tenor of the debate. If the locus of sovereignty were to be reconceived specifically and publicly, from the Queen-in-Parliament to the people, then something revolutionary would have happened. The change would no longer appear so minimal nor would its consequences be so subject to prediction or control. Republican sentiment may be of long standing in Australia, but it was the Australian Labor Party in 1991, then in power and led by Paul Keating, which committed itself to a republic by the year 2001. In this sense the republican issue in Australia is a partisan issue - that is, one party which, until recently, was the governing party is pledged to its promotion. It is true that sentiment within the Liberal-National coalition is divided and, for that reason, republicanism is not solely a Labor preoccupation. However, the distribution of support is irrelevant; what matters is that organized parties in Australia, parties which seek to take control of the government, must respond to the republican challenge. For governments in a constitutional monarchy, a minimalist republic is best because it is least disruptive of the status quo, which is to say it detracts least from their existing array of power. For the Australian Labor Party, the answer to Hamlet's cry is clear - to be a republic, but a republic which is, in all but appearance, a constitutional monarchy. Not everyone sees the logic or wisdom of that position. Harry Evans, clerk of the Senate of Australia, has argued that in the absence of monarchy 'there is no justification for the executive government possessing such monarchical prerogatives as the powers to prorogue Parliament, to dissolve the House of Representatives at any time, and to make treaties and appoint judges without legislative sanction.'49 Law professor Suri Ratnapala argues that 'if the monarchical element of the Constitution is to be abolished, it is imperative that the remaining checks and balances in the Constitution be strengthened.'50 The Report of the Republic Advisory Committee said that Australia was already 'a crowned republic.' The implication of this assessment is that it is a small step from that condition, where the Crown is all but a rubber stamp, to Lord Grey's head-

Contexts and Contrasts 219 less republic. This is the critics' point: if nothing is done but to follow the minimalist option, then a powerful executive will have become that much more powerful. The time to begin the debate over the form of government Australia is to have is during the discussion of the country's potential republican future. Here is the opportunity, says Campbell Sharman, 'to raise the core issues about the head of state and the relationship with the head of government.' Even if a republic never comes, the discussion could still 'mutate into a real debate about executive power.'51 And that, rather than minimalistic changes, lies at the heart of the republican option that conforts Australians. Those who adopt this position find themselves echoing Lord Elgin's stricture about those who 'talk somewhat lightly of the check of the Crown.' In other words, minimalist advocates who depict monarchy as an inadequate symbol and republicanism as a more potent icon ignore what is easy to ignore, the very real powers of the Crown. They can do this because under the system of constitutional monarchy operating in Australia (and Canada), these legal powers are exercised on political advice, while the reserve powers, exercised independently of ministerial advice, are seldom invoked. But in a republic the concern is how to keep the legal powers subject to political control. Here is the same issue that the Indian constitutional assembly faced decades earlier: whether to rely on the continuation of a regime of conventional restraints or to codify the understandings that restrict the use of the prerogative powers. In a republic, as in a constitutional monarchy, the head of state is an integral part of the governing system. The question is how to integrate a future president so that he or she is in a position to act independently but also responsibly. In politics independence has a double meaning: to act autonomously and to act in a nonpartisan fashion. The premise in a parliamentary republic is that the president should act in the latter and not in the former manner. The conundrum that participants in the Australian republic debate have been forced to articulate as that debate moves beyond the minimalist assumptions of the earlier literature is what to do with the sweeping powers of monarchy which, in the absence of the Crown, would engorge the political executive even more than at present or which, if handed to a president, would possibly create a too-powerful head of state. Republicans malign a derivative head of state for its lack of national authenticity. But the 'double' head of state that constitutional monarchy in Australia presents does have the advantage of sheltering the governor general under the Crown. In a republic, there will be no Crown; whence then will come the protection as well as the security that republicans promise?52 This is not the only difficult question to trouble debate. To it might be

22O Part Three added the complex matter of a procedure to appoint and remove a republican head of state. On the first question, the usual alternatives are appointment by the prime minister, with or without advice from a consultative body such as McGarvie proposes; appointment by the prime minister, but approved by Parliament, with or without provision for special majorities; an electoral college with, perhaps, representation from the national and state Parliaments, as in India; and, finally, popular election. The advantages and disadvantages of each of these methods go beyond the concern of this discussion, although the range of choices suggests the breadth of argument the republican question raises. Not least important in contributing to this complexity is the federalism question. Australia, like India, is a federation, and any transition to a republic has immense implications for the states. So immense in fact, that some proponents of republicanism have preferred to leave the introduction of a republican form of government at the state level to the states alone. George Winterton has argued that 'the advent of an Australian republic need not, and is unlikely to, have any significant effect on Australia's federal system.'53 So little effect, that he could contemplate (but not enthusiastically) a combination of republican and monarchical governments in Australia. Here is a conception of federalism not only in opposition to the vision of the American founding fathers but dissociated as well from some Australian perceptions. In a book of the same title, Brian Galligan describes Australia as 'a federal republic/ whose 'sovereign people ... established a new national government with limited powers and at the same time made colonial governments integral parts of the new federal system.'54 Integration of monarchical and republican governmental forms within the same polity may be deemed feasible where the gap that separates them is viewed as minimal. Where, by contrast, the transition to republic is considered a substantive as well as a symbolic change, then integration becomes problematic, not least for the symbolic identity that transformation is supposed to realize. The complexity of the position of the Australian states, whose governors (unlike Canada's lieutenant-governors) are appointed directly by the Queen, is an element of the republican debate that also lies beyond the current discussion. That it constitutes a challenge to minimalist assumptions, however, is trenchantly borne out in the opinion of Sir Harry Gibbs, former chief justice of the High Court of Australia. It is Gibbs's view that 'the questions raised [for the states] are novel, free from authority and shrouded in doubt.' More generally, he has observed: The legal com-

Contexts and Contrasts 221 plexities associated with the change to a republic involve difficult questions that go to the very heart of federation.'55 Ireland was not a federation, although the political division of the country into north and south had as its source the determination of southern politicians to have a republic. At the time it abandoned the Crown, India was a failed federation. The Government of India Act, 1935 had introduced responsible government into the provinces and had provided for a federation comprised of both British India and the princely states. The first objective succeeded, and in so doing it strengthened Indian commitment to the parliamentary tradition; the second failed, because the princes never consented to play the role assigned to them.56 British India was a unitary state before 1935 and the unitary assumptions from that experience persisted after independence and into a federal republic that awarded superordinate powers to the central government. Federalism was considered an essential precondition to the success of the republican constitution in late-eighteenth-century America; it was viewed as a threat to national stability in India and, in company with other concerns, added weight to arguments in the 19805 that India should reassess its system of parliamentary republicanism in light of the unifying benefits that would come from direct election of the president, as in the United States or France.57 In Australia, too, republicanism has been perceived by some critics as a threat to federalism. According to Andrew Fraser, for instance, the draft constitution prepared by George Winterton 'does more than abolish the monarchy at the federal level: it gives the Commonwealth Parliament the power, not just to sever the constitutional links between the states and the Queen, but also to reconstitute the tenure, powers and manner of appointment of state Governors.'58 In sum, the states would have lost 'even the capacity to change or preserve their own constitutional identity.' Canada

Whether or not tension between republicanism and federalism is endemic is not the point. For a country like Canada, where federalism is the bedrock of national existence, the possibility that the two systems are incompatible is enough to prompt unease. That Australia is a federal system is scarcely debatable. In his famous study of federal government, K.C. Wheare found Australia an exemplary representative of its type; Canada was credited as being only quasi-federal. But between the two models, there is an important difference. Campbell Sharman is right

222 Part Three when he observes that Australian federalism preceded the creation of the Commonwealth in 1901: 'Dispersal of power across the continent was recognized by federalism, not created by it/59 Still, as a Canadian political scientist also perceived: The reality surely is that Australian states, unlike Canadian Provinces, are to a large extent microcosms of the whole, with similar internal divisions as the whole; which is why, despite the intentions of the respective founding fathers, the powers of the Canadian provinces are rather more secure.'60 Another way of phrasing this is to say that Canada is a composite state both in genesis and in development. Unlike the United States or Australia, there was no historic moment when the Canadian federative union sprung to life. On i July 1867, the confederation of existing and new colonies came together as a legal entity. But each carried with it distinct characteristics. More than that, even before Confederation, politics in United Canada had been an exercise in deliberation, intent on balancing interests. For critics of the day like Henry John Boulton (Norfolk), this preoccupation constituted 'a gross abuse of the prerogative of public authority/ More damning, however, it was a 'curse ... like the balance of power between the Free and Slave States - intelligence sacrificed to dead votes/61 The sectionalism of Canadian life continued to be reflected in political parties and in Parliament; it produced a ritual federalism in the allocation of cabinet seats, the placing of flags, the ordering of speakers, and more. Parliament provided the forum but the inequalities rooted in federalism dictated the rules. Even new provinces created by Parliament accepted this arrangement, although they protested overt discrimination when, at their creation, Parliament retained their natural resources 'for the purposes of the Dominion/ Canadian federalism was about jurisdiction first and representation second, and because of that order of priorities 'the governmental machinery of the provinces' consolidated to do battle with the federal government.62 Australia, it is said, had acquired by 1901 an 'indigenous experience of government ... enshrined in such institutions as bicameralism, federalism, and entrenched constitutions/63 Canada had no entrenched constitutions and might as well have had no upper chambers, since the few there were were dominated by the government in the lower house. Australians early accepted and then came to expect a quite un-English dispersion of power, where Canadians accepted its concentration. It is a principal part of the republican argument today in Australia that colonial politics and constitutions prepared, even conditioned, Australians for the 'inevitable' transition from monarchy to

Contexts and Contrasts 223 republic. If Canadians were republican-minded, they would have to look elsewhere than to the past for inspiration. But Canadians have never demonstrated an interest in this particular constitutional change. Their preoccupation favours the pieces that comprise the whole rather than the union itself. At least, that was the case with most of the governments of Canada, as indicated by their response to the Trudeau government's constitutional proposals in 1980 which included an entrenched charter of rights and a referendum component to a domestic amending formula. The premier of Prince Edward Island spoke for more than himself when he told his fellow first ministers that the present course of action by the federal government is a denial of the federal principle. It treats Canada as though it were an association of individuals rather than an association of provinces each of which is sovereign within its own jurisdiction. Canada is not a monolith; it is not simply a larger version of preConfederation Canada, but a partnership of neighbours. Each of these partners came freely into Confederation with the understanding that its integrity and uniqueness would be respected and safeguarded within the union. That understanding is at the heart of our national [sic]. If it is harmed, Canada, as we have known it, is harmed.114

In the decade and a half since its passage, the Canadian Charter of Rights and Freedoms has operated as a counterpoise to the British parliamentary tradition that has empowered governments at both levels of Canada's federation. Even here, however, the proprietary and exclusionary claims to the recognition and protection of rights qualified the impact of the Charter on existing political practices. Moreover, the last half of that period saw two concerted attempts, which failed, to entrench greater decentralization in the constitution and, as a consequence, stronger provinces. More recently still, incremental and programmatic changes initiated by the central government have sought to accomplish the same objectives by nonconstitutional means. The 'residual logic' of the Canadian system, like the British, is 'executive autocracy/ only in Canada this may occur at both levels of government.65 The 'false populism' of the last decade of the twentieth century provides only an illusion of participation in the development or adoption of policy, while talk of equality of condition conflicts with the Canadian tradition that seeks to reconcile the claims of provinces and individuals.66 In this regard, compared to political practice in the United States, Preston Manning exaggerates when he says 'we are all North Americans now.'67

224 Part Three William Lyon Mackenzie, the tribune of the common people, remains a contentious figure still; his call for popular inclusion and undifferentiated participation still fails to rally those who favour separate voters' rolls, allocated legislative seats, or designated nominations. It is a very Canadian style of politics to accept a change to the franchise as a substitute for increased participation. Australia's occupation of a continent protected its English-based culture after 1788, but isolation from Europe made it externally vulnerable. Canada's sharing of another continent exposed its culture to pressure but made the country externally secure. Geography explains much about the contrasting attitudes of Canadians and Australians to republicanism. For Australians, republicanism holds out a symbol of distinction; for Canadians, it carries no distinction. But the reason Canadians are unimpressed with republicanism is not explained by the United States being a republic. Canadians hardly ever refer to the 'republicanness' of their neighbours. They may talk about the presidency and Congress or about the operation of the American federal system, but they show no interest in the constitution that provides for these features. There is more behind this obtuseness than ignorance. Republicanism is not perceived to have anything to do with what traditionally concerns Canadians - national unity. Nor is the economic or military power of the United States associated with its republican commitment. References to republics are few in the Canadian literature, but one variant of them is of the republic as enclave, as a self-sufficient entity: forts on the frontier were described as 'a sort of Republic/ and those who lived in them as 'liv[ing] like true republicans'; the Icelandic Preserve, 'an area about forty-two miles long and about eleven miles wide ... along the shores of Lake Winnipeg,' was also known after 1875 as 'the Republic of New Iceland.' When The Canadian Monthly a century ago described Argentina for its readers, it observed that 'this vast region has one peculiarity. It has no "country" as we know of and in which we delight ... Outside of the cities all is barren and barbarous. Thus the Argentine Republic means a Republic of cities.'68 In this depiction, republics were isolated, free of external ties and unencumbered by obligations. Here was an Arcadia, if not Utopia; but here one would not find Canada. Canadians sought identity in obligation - to the Empire, the Commonwealth, and even to an absent monarchy. Here were the marks of the kind of personality that Ireland shunned and India rejected, and which a large segment of public opinion in Australia now seeks to extinguish.

9

Conclusion

Born of revolution against a common mother country, modern republican government was deemed permanently suspect ever after in Canadian eyes. More than the circumstances of its birth disqualified republicanism, however, since at its core the new theory of politics proclaimed the sovereignty of the people through a system of representation based on popular election. Of course, there was a huge discrepancy between the theory and the fact of popular sovereignty - as a start, women and slaves were excluded from participation. Nonetheless, in its presupposition that those who ruled were agents of the ruled and governed by their consent, American republicanism diverged dramatically and permanently from the British political tradition that preceded it and which the British North American colonies were to maintain. That opponents of British colonial rule in these latter colonies should later appropriate and champion the electoral principle in the years before the achievement of responsible government reaffirmed its impropriety for the majority of Canadians: 'An elective Legislative Council has been,' said Lord Elgin, 'at all times a standing-dish with revolutionary parties in Canada - therefore [the Canadians] rejected it.'1 The French Revolution, though too far away and too foreign in its causes and development to elicit informed criticism, drew the same response. Had the British colonists in North America understood the revolutionary intention in France - to abolish the representation of interests altogether in favour of expression of the common will - they would have been no more sympathetic.2 But it was the national independence of the United States that earned Canadian suspicion of the American project, and with it of republican government as well.

226 Part Three That suspicion has taken different forms, most prominently fear of American encroachment on Canada's economy and culture.3 For present purposes, it is the political threat posed by the American republic that deserves attention, in part because that threat is less often articulated or, when it is, it is phrased in a manner that obscures the essence of the challenge. For instance, Canadians (as well as many Americans) speak disparagingly of the amounts of money that flow into American political campaigns and the disinclination of congressional and state legislators to enact laws to control campaign financing.4 Canada, by contrast, has a strict regime of election expense laws, although as noted in an earlier chapter of this book, it is a regime under attack. Defenders of Canada's regulatory scheme favourably compare this system with the ineffective controls in the United States. Similarly, invidious comparisons are regularly drawn between American and Canadian practices in regard to voter registration and gun control, for example. The theoretical ground for American practice and policy is seldom acknowledged by critics, however. Yet in these and many other matters of politics, Americans are a more theoretical people. Long ago, John Nielsen dismissed Louis-Joseph Papineau as 'a man whose life has been the pursuit of a theory, and nothing else.'5 A world of meaning lay in that 'nothing else.' Canadians are a pragmatic people, and it is no slight observation to say that one of the unattractive features of republican government for Canadians was that it was based essentially not on practice but on theory. The rigid simplicity of a written document, to cite Catharine Macaulay again, disturbed them. Thus the theory as well as the fact of American republicanism posed a threat not only to the constitution of politics in Canada but to the constitution of political knowledge its settlers inherited. The Canadian political system is one of hierarchy and exclusion. Politics is an occupation, monopolized by those in office - in effect by political parties - and, within the parties, by leaders. The Canadian system is one of boundaries, particularly between those inside and outside the system. That is the reality that accompanies the modern development of constitutional monarchy in Canada as well as in Great Britain. The American republic in theory, and to a lesser degree in practice, inverts this relationship: there politics outside the structures of government propel the actions of those in office. When, in 1997, television microphones inadvertently transmitted Jean Chretien's personal assessment of politics in the United States, the substance of his critique ran as follows: American politicians 'sell their votes ... [they sayl if you want me to vote for NATO, then you

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have to build a bridge in my electoral district.' As a result, 'the U.S. President ... sometimes ... cannot deliver on his promises because of Congress.' 'It's incredible/ said the Canadian prime minister.6 Incredible but true. More than that, according to the historian Edmund S. Morgan, the practice of exchanging votes for favours lies at the heart of 'what makes the Revolution truly revolutionary:' [Here] was the emergence of a kind of equality that republican leaders [such as Washington, Jefferson, and Adams] had never envisaged, an equality that validated selfishness rather than selflessness, an equality that mocked gentility rather than nurturing it... ... The qualification for public office, whether in the new national government or in the separate states, was not disinterested commitment to a general public welfare, but a demonstrated commitment to the special private interests of a particular group of voters.7

It is questionable whether Canadian politics are as disinterested in their operation as the prime minister's incredulity would suggest. Still, it is true that party discipline and the parliamentary system, in which cabinet monopolizes the prerogatives of constitutional monarchy, produces greater independence of leadership than the American system provides. In his comparative analysis of constitutional structures, Giovanni Sartori candidly states that the American system works 'in spite of its constitution' and then only in the presence of three conditions: 'ideological unprincipleness, weak and undisciplined parties and locality centred politics/ 8 Here, ironically, is the product of American republican theory when reinforced by the United States constitution's other principal innovation - federalism. For Canadians in the nineteenth century who were interested in government in the other great republic, France, the lesson learned from the most influential constitutional legal treatise of the day, A.V. Dicey's The Law of the Constitution, was no more salutary: here again was another undisciplined legislature, another irresponsible cabinet, another impotent president.9 It is a long reach from classical political theory's preoccupation with balanced institutions and a mixed constitution to the overfishing of limited salmon stocks in the Pacific northwest. Although attenuated, the fish war underlines the constitutional contrast between the monarchical and republican forms of government in the Anglo-American world. In Canada the foreign affairs power devolves upon the federal government as part of the Crown prerogative. In the United States, it is a power

228 Part Three shared with the Senate, whose members are in turn agents of the people, in this case the multiple interests that must be conciliated before an international agreement with Canada may be concluded and its ratification receive the advice and consent of the Senate. More specifically, in Canada executive power does not flow from the legislature, because representation in a monarchical system is not the source of executive power. In the United States, representation is the source of all power, and it is shared by all branches: 'All the departments of government were to be emanations of the people as a whole.' In short, where under monarchy there was a government, under American republicanism there was none, for government had become 'disembodied.'10 The theory of American republicanism held little appeal because Canadians depended upon government. The colonies before and Confederation after 1867 were political not popular creations. For a brief period in the 18305 the established institutions of colonial rule encountered extraconstitutional opposition; after the Rebellions, however, the legislature became and remained the arena of contest. Within that forum important realignments of power might occur, but that transformation was always secondary to the pre-eminence of parliamentary institutions. It was significant, too, that people reconciled themselves early and permanently to the symbolism of this constitution. The Rebellions failed because allegiance to the Crown (a product of United Empire loyalism and Roman Catholic hierarchical support, among other influences) meant subordination to Parliament. In time, allegiance to Parliament meant subordination to the Crown. In United Canada and later, after Confederation, the legislature and then Parliament came to signify Canada to a degree the Crown never could. More accurately, it was the lower chamber and the government overwhelmingly drawn from it that acted in this capacity; despite their near-constitutional equality with the lower house, neither the Legislative Council nor the Senate of Canada could be said to have played this role. Canada's unicameral mentality took root early. The bicameral sovereignty deemed essential by James Harrington and John Adams to the success of republicanism and found latent by scholars today in Australia's present constitution has no counterpart in Canada. On the contrary, as Lord Elgin shrewdly observed in 1849, for most of its history 'if creations are made to bring the two branches into harmony, an inexhaustible field of declamation and deuntiation [sic] is supplied by analogies sought in the British House of Peers. Analogies are utterly faulty, but satisfactory enough to people in a passion.'11 And their passion was not at one with Papineau, who even after the

Conclusion 229 Rebellion could still say 'he loved England ... but he loved freedom more/12 For the vast majority, the language of patriotism remained the language of Empire, while the language of protest echoed the language of republicanism. Canada never produced a Tom Paine to liberate the rhetoric of patriotism or to propagate a radical alternative;13 and Louis Hartz 'doubt[s] whether, robbed of its nationalism, the French- Canadian democratic movement of the thirties would have approximated the Jacksonian comparison even to the extent that it does.'14 Fidelity to the British model in a country and society that were not British discouraged reform to the Senate at the same time that it rendered the existing institution ineffective. Nor was there agreement on what role the Senate should play. Canada might be a federation, but its central institutions imperfectly reflected that arrangement. It could never be said that the government at Ottawa followed American precedent and was organized in terms of the constituent units of the federation. Instead, political accommodation was only possible in Canada through political control of the lower house. The American republic demonstrated the difficulties associated with bargaining in a system without a centre. More than that, before and after 1867, Parliament symbolized the political union. It was in Parliament where official recognition of Canada's two languages first occurred; rather than being a cause of division, the acceptance of French and English as equal became a unifying source of identity. Again it was through Parliament that the vastness of Canada was acquired and then administered. Baldwin once said that 'his anxiety for Canada, was the idol of his idolatry' but his devotion took tangible form as well. In an exchange with Sir Allan MacNab (then Speaker) over the acquisition of a new mace, Hansard reported that 'Mr. Baldwin had no objection if the Canadian emblem, the beaver and maple branch formed a conspicuous portion of it.'15 In the first decades of the Victorian era, the Crown had yet to become the symbol of nationhood which later critics professed to see it represent. It is open to debate whether the Crown ever played that role and whether Parliament's 'Canadian preoccupations' were ever eclipsed. One of the criticisms directed at monarchy today in Great Britain is that it 'gives the state a controlling interest in popular national identity.'16 Similar complaints about the manipulation of the Crown for political purposes have been heard in Canada: L'Action Nationals depicted the royal visit of 1939 as 'un plebiscite en faveur de 1'Empire, un blanc-seing donne a nos gouvernants pour leur politique exterieure/ that of 1964 as

230 Part Three an attempt 'detourner les sympathies provinciales pour les orienter vers Ottawa ... La reine, instrument des centralisateurs!'17 Yet more frequently the indictment is reversed and the government is accused of undermining rather than exploiting the monarchy. It has done this, say critics, by Canadianizing the Crown to the point of abandoning royal symbols, a process that began after the First World War with the abolition of hereditary honours.18 The desirability of that last decision may be open to question, but that it was a policy, consistently pursued with resistance expressed only from a minority within and outside of Parliament, is indisputable. The Parliament of Canada as an instrument of symbolic integration for the country is a legislative function seldom acknowledged, and regional dissent from policies deemed to favour the central provinces over the hinterland might challenge its effectiveness. Yet lack of agreement does not disprove the case for the centrality of Parliament and, more importantly, for the role the Parliament of Canada historically perceives itself as possessing. This is an interpretation that distinguishes it from the Congress of the United States and, because of the determinative part assigned to the executive in the parliamentary system, from any governing arrangement based on the concept of the separation of powers. The primacy the constitution confers on the Parliament of Canada helps explain the weak attraction of American republicanism for Canadians, even after the passions of the revolutionary era had abated. It does not explain the absence of anti-British rhetoric, which has been so constant a feature of republican sentiment in Australia.19 Transportation, settlement patterns, and demography generally are possible sources of difference between Canada and Australia, but the more general contrast lies in the dependency of Australia on Britain - economically, culturally, and militarily - to a degree not seen during Canada's history as a federation. A well-being that depends upon another is not a relationship destined to remain unexamined. Canada's relationship with Britain entailed few costs but conferred one significant benefit: it distinguished Canada from the United States. There was every reason therefore to maintain the historic tie. Both Canada and Australia today may be said to pursue a politics of difference but with this distinction: Canada's is motivated by proximity to the United States, Australia's by remoteness from Britain. Multiculturalism is another argument in the Australian republican case for a severance of the last constitutional link with the mother country. As Mark McKenna observes: 'Monocultural definitions of identity

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through "Britishness," "whiteness" or traditional stereotypes of Australian identity' no longer carry the conviction or the majority they once did.20 It is rare in Canada to hear the linkage made between monarchy and multiculturalism, though not unknown: in the late 19705 Walter Tarnopolsky asserted that 'one institution ... must go, and that is the Crown. Both for the sake of keeping Quebec in Canada and for the sake of the just and egalitarian society that I think is our aim, Canada will become a republic within the Commonwealth.'21 Scholars from outside Canada, such as Ged Martin, who has visited both Canada and Australia, disagree: '[I]n the past half-century, at least, newcomers [to Canada] were not being asked to accept the British monarchy, but a symbol of what made Canada Canadian, or at least, not American/ The warm welcome Italian-Canadians have given the Queen, Martin says, testifies 'to the Canadianisation of the institution.'22 While aboriginal Canadians and Quebecois both protest being associated with multiculturalism, since each group sees itself and its relations with others in light of a differentiated citizenship, on the matter of monarchy there are similarities. Aboriginal Canadians least of all Canadians desire an end to the Crown, while more than most, they endow it with political substance; Quebecois most of all Canadians desire abolition of the monarchy, but not with the fervour the debate over separation and secession might suggest. As Martin further notes and as the Parti quebecois platform indicates, there is a republican agenda, 'but is remarkably understated.'23 Because there is no one genus republican with common structural characteristics, just as there is no one genus monarchy, the potential of a single reform is unknown. Only if abolition of monarchical office is the object can the minimalist solution, as that term is used in the Australian republican debate, satisfy. Yet monarchy is not the sovereign - it is the Crown as well. Abolition will rid the system of one but not the other. The proposal by the Globe and Mail, that members of the Order of Canada should select the head of state once Canada's hereditary monarchy is at an end is no more the answer to the problem of vestigial prerogative power than is the selection of an Australian president by that country's two houses of Parliament. Popular sovereignty, to which the Australian constitution may lay some claim, demands coherence, which means participation in the selection of the head of state in a new republic. In Canada there is no latent pattern of popular sovereignty to become manifest, nor a theory of participation to justify it. Canada, unlike the United States and, to a degree, Australia, is an 'incorporating' rather than a 'federative union/ 24 Whether the union of

232 Part Three 1867 was an act or a pact, the federation of Canada was as ' "imperial" as that of [Great Britain] had been before it.'25 Through Parliament Canada extended its authority over the North-West Territories and Rupert's Land; through Parliament British Columbia, Prince Edward Island, and Newfoundland were incorporated into the union. Through Parliament and the chief committee drawn from it, cabinet, Quebec, with its Frenchspeaking majority, retained its identifiable form as, to a lesser degree, did other provinces. And because it did participation rather than representation took precedence. At its core the American republic is based upon a theory of representation; the Canadian political system requires for its operation not representation but participation. Without a new theory of representation Canada can never be a republic other than in the symbolic but minimalist sense advocated for Australia today. With the end of constitutional monarchy, some alternative concept must fill the void of the absent Crown. Today the coherence of the Canadian polity, in theory at least, comes 'from above.' A republic must, as Catharine Macaulay wrote two hundred years ago, be able to explain itself to itself. That was the essence of its rigid simplicity, for republican government was 'educative/ it taught the citizen 'how to act well.'26 In short, there was more to politics than turnout. Here was Canada's problem: she was not a nation like Ireland (G.K. Chesterton once wrote, and the government of Ireland repeated in its request to the United States for recognition in 1920, that 'if Aunt Jane was not a person there is no such thing as a person, and I say with equal conviction that if Ireland was not a nation there is no such thing as a nation'). She was not a federative union like the United States, nor, paradoxically, given her internal unity problems, was she propelled, as Australia increasingly seemed to be, to seek a new form of external identity.27 For a long time Canada's very strength lay in what it did not require - unity. Whether that is any longer true is not at issue here, although there may be reason to wonder. When asked to describe the work of the Charles R. Bronfman Foundation's Heritage Minutes Project, Patrick Watson, the creative director, explained that 'we're not really doing history, we're making myths ... we're creating dramatic experiences to which Canadians can assent.'28 What is beyond question is that a republican ethic that reaches beyond symbols demands agreement on constitutional fundamentals. Such agreement never emerged because it was never sought. Canadian republicanism remained at most a republic of the mind, and even then few indulged their imagination.

Epilogue

The effacement of constitutional monarchy in the process of building a republic is more complex and delicate than its proponents allow. Monarchy in a modern democracy, they claim, is anachronistic and inappropriate, its functions ceremonial and symbolic. That being said, the progress of republicanism in Australia is proving neither invincible nor inevitable. A sample of the uncertainty that surrounds the cause was placed on offer by the Constitutional Convention held in Canberra in February 1998. The Convention represented the third step in the testing of the republican idea. The first had been Paul Keating's declaration in 1995 that Australia should severe its last (monarchical) tie with Great Britain; this followed the appointment of the Republic Advisory Committee, which reported in 1993. The second step was the promise of his rival and successor as prime minister, John Howard, to hold a constitutional convention. That assembly was unprecedented in its composition: 152 delegates, half appointed (to guarantee voice for normally under-represented groups, along with forty federal, state, and territorial legislators, including all first ministers and opposition leaders) and half elected (by the equally unprecedented procedure in Australia of voluntary postal ballots). The result produced seventy-eight delegates identified as republican, thirty-nine constitutional monarchists, and thirty-five undeclared delegates. It was not the task of the delegates to achieve a consensus on the question whether Australia should become a republic - that was a decision which the constitution reserved for the people to vote upon in a referendum - but to articulate clearly what republican model should be placed before the people when they come to make their choice. Critics

234 Part Three suggested that in this endeavour the proponents of change would experience difficulty. One spokesman for the constitutional monarchist position reminded delegates of Tacitus' observation that 'it is easier to praise a republican model than to make it work.'1 Cynics went further, believing that through the form of a convention Mr Howard, a constitutional monarchist in sentiment, had devised an effective way to 'neutralize the republican issue.'2 In the end the outcome of the convention gave the monarchists reason to hope the status quo would remain, yet neither did it dash the expectations of the mainline republicans. That last adjective is important since it underlines what is too often overlooked - republicans are not united. The Australian Republican Movement (ARM) comprised fewer than half the convention's delegates, although doubtless the most important contingent, since the other republicans defined themselves in opposition to the ARM model. At its heart, that model called for a president elected by a special (two-thirds) majority of Parliament. For those who say that the quality of a republic depends upon the quality of its citizen, this is too little; for those who maintain that a minimalist monarchy must become a minimalist republic, it is too much.3 For the first dissenters, among whom were those calling for 'A Just Republic, Not Just a Republic,' the issue was one of principle; for the second, it was one of practice - how to achieve a republic with the least disruption of the existing constitution. As a result of the division in their ranks, the republicans never united behind a single option but instead advanced three possibilities: a mini-, a midi-, and a maxi-model of republicanism. The division in republican ranks was given ample opportunity to reveal itself, in part because of the structure of the debate over the twoweek convention. Each day (or sometimes each second day) delegates debated a new issue from the pre-established agenda. In sequence these were as follows: 1 Tf there is to be a new head of state, what should the powers of the new head of state be and how should they be defined?' 2 Tf there is to be a new head of state, what should be the arrangements for appointment and dismissal?' 3 'What consequential arrangements would be required if Australia is to become a republic!' 4 'When would it be appropriate for Australians to vote on a possible change to a republic, and when should any change to a republic take place?' 5 'Whether Australia should become a republic?' and

Epilogue 235 6 'Which model for an Australian republic might be put to the Australian people in a vote?' In short, the delegates were to determine the form of a possible Australian republic and how and when it should be implemented. The debate covered 684 pages of Hansard. Much of it did not address the previous questions, but rather communicated the sense of the occasion. For instance, the convention was taking place in the ninety-seventh year of the Commonwealth, with the centenary less than three years distant. Between the debate and that celebration Sydney would play host to the Summer Olympics in 2000. Moreover, Australia was approaching the millennium. If ever there was a time for constitutional change, it was fast approaching. Here, republican advocates said, was Australia's opportunity to recapture her tradition of political innovation: the secret ballot, women's franchise, and proportional representation all saw birth in Australia. Once she was 'the most democratic country in the world'; let her then reclaim that title by 'completing the founders' agenda/ 4 If, as the advocates said, a republic was only a matter of time, what better time than now to embrace the inevitable? To this heady appeal, cautions drawn from comparative study of republican regimes offered only momentary pause. Forget the United States, with its popularly elected president; be wary of France, with its 'bicephalous executive' which demands unseemly 'cohabitation'; look more carefully at the Irish model, which is no model at all for Australia (a weak appointed Senate in Dublin, a powerful elected Senate in Canberra). Not every Irish president combines the talents of a Mary Robinson, who had paid the first state visit of an Irish president to Australia in 1992 and was enthusiastically described by a columnist in The Australian as a cross between Hepburn and Havel.5 In fact, none of the previous Irish presidents had been at all like Mary Robinson except in one respect - like her they were politicians. And neither the politicians nor the general public wanted another politician in the office of president. Indeed, when the delegates turned to deal with the questions their agenda required them to answer, they found 'the thread which connects the power question to the election and appointment question is the Australian people's alienation from the political process.'6 On the powers of the new head of state and how they should be defined, concern centred on the Crown's reserve power and what was to become of it. Should it be codified and, if so, how much of it should be transposed to writing? Was there agreement on what might be codified? The lesson learned from Sir John Kerr's dismissal of Gough Whit-

236 Part Three tarn in 1975 had yet to crystalize into a convention on which all could agree. And even if there were agreement on what might be codified, there was potential for High Court involvement in interpreting the meaning of the new rule. This was unpalatable, since the mini- and midi-republicans sought to maintain the balance of existing constitutional arrangements. Parliamentary supremacy, to the extent that federalism allowed, was a preferred value for all but maxi-republicans who called, among other things, for an entrenched bill of rights. As Sir Richard McGarvie, the proponent of a truly minimalist constitutional council of eminent (and elderly) Australians to appoint and dismiss the president on the advice of the prime minister, cautioned, a more profound change would corrode the constitution. As a case in point, he noted Canada's unhappy experience with prolonged constitutional uncertainty.7 Called 'elitist' and worse, the McGarvie model possessed the saving virtue of leaving existing constitutional arrangements virtually untouched. In light of the fact that the Australian Senate may block supply, as it has done in the past, ARM delegates also resisted any proposal to limit reserve powers and thus make parliamentary stalemate a real possibility. Direct election of a president having the same reserve powers as the governor general thus posed, in the eyes of the ARM, a major threat to constitutional stability. Yet the McGarvie model of a Sanhedrin to select a president was no more attractive since to mainstream republicans it represented a retreat from Australian democracy. Consequential arrangements were required to take account of a number of concerns posed by Australia's transition to a republic. For instance, it was agreed that the country's name, Commonwealth of Australia, would be retained, as would her membership in the Commonwealth of Nations. Again, the existing preamble of the constitution was to be retained, although a new preamble would be included that, among other things, acknowledged 'original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders'; recognized the rule of law, cultural diversity, and the federal system, and made reference to 'Almighty God.' Finally, the convention agreed that the referendum on a republic be held in 1999 and, if the result was favourable to change, the new republic come into effect by i January 2001. Through their electoral system Australians are used to the idea of forcing a majority. The Constitutional Convention replicated that experience with the republican models that eight days of debate had produced. On the ninth day four models - two supporting a popularly elected president, along with the ARM's two-thirds parliamentary

Epilogue 237 majority model and the McGarvie proposal for an appointed head of state - were submitted to delegates in four rounds of balloting. Monarchists had the choice of voting for no model or abstaining. As well, midway through balloting delegates were offered the choice of maintaining the status quo. This procedure was defended on the grounds that it would 'give maximum information to delegates about where support is when confronted with different patterns of choice.'8 The direct election models fell out on the first two rounds, the McGarvie option at the third, with ARM model emerging as the preferred republican option. In a fourth round of balloting, that model, now amended to allow for a parliamentary committee to consider nominations for president and then to report to the prime minister, was put to a final vote. The result saw the ARM model approved by seventy-five delegates, with seventy-one opposed and four abstentions (two delegates were absent for the vote). On the last day of the convention, by a vote of seventy-three for, fiftyseven against, and twenty-two abstentions, delegates supported 'the adoption of a republican system of government on the bipartisan appointment [ ARM1 model in preference to there being no change to the Constitution.' As a last item of business the delegates voted - this time ayes 133, noes 17, abstentions 2 - to recommend to the prime minister and Parliament that 'the [foregoing] republican model ... be put to the people in a constitutional referendum.' The Australian people must now make an historic choice: to maintain a constitutional monarchy, whose symbolism even supporters like John Howard described as 'no longer appropriate/ 9 or to opt for a parliamentary republic, which the convention consistently refused to back with majority support. Nor have opponents of change admitted defeat. The referendum provision of the Australian constitution (section 128) requires a majority of the people in a majority of the states to secure an amendment, but would that conclusively efface the constitutional monarchies in the states? Like Canada, Australia is a compound monarchy (of seven Crowns); would a successful national referendum transform the Commonwealth into a republic but leave a recalcitrant state a 'monarchical island'?10 Here is a ludicrous but serious complication to the claim that a republic is achievable with minimal disruption to Australia's tradition of stable government. Is the risk and the cost it entails worth the effort when, in the end, all that will have changed is the name of the head of state? As one opponent of the ARM model caustically concluded: 'At least Robespierre had a real cause.'11

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Notes

Abbreviations AJPS CBR CHR

Australian Journal of Political Science Canadian Bar Review Canadian Historical Review

CIHM

Canadian Institute for Historical Microreproductions

CJEPS Canadian Journal of Economics and Political Science CJPS Canadian Journal of Political Science CPA Canadian Public Administration CPR Canadian Parliamentary Review CO Colonial Office DLAUC Debates of the Legislative Assembly of United Canada EHR English Historical Review IJCS International Journal of Canadian Studies JCS Journal of Canadian Studies JCCP Journal of Commonwealth and Comparative Politics JICH Journal of Imperial and Commonwealth History McGLJ McGill Law Journal PSQ Political Science Quarterly RHAF Revue d'histoire de I'amerique franqaise SAB Saskatchewan Archives Board SBR Saskatchewan Bar Review SCLR Supreme Court Law Review TFCU Task Force on Canadian Unity TRHS Transactions of the Royal Historical Society TRSC Transactions of the Royal Society of Canada LIPLR University of Pennsylvania Law Review

240 Notes to pages 3-5 UTLJ WALK

University of Toronto Law Journal Western Australia Law Review

i: Why Is There No Republicanism in Canada? 1 EJ. Hobsbawn, The Age of Revolution, 1789-1848 (New York: Mentor Book, 1962), 74-5. 2 For a sample of perspectives on the crisis, see Sir John Kerr, Matters for Judgment (London: Macmillan, 1978); E.G. Whitlam, The Truth of the Matter (Harmondsworth: Penguin, 1979); and Sir Garfield Barwick, Sir John Did His Duty (Wahroonga: Serendip Publications, 1983). Barwick was chief justice of Australia, 1964-81. 3 See, for instance, 'Carr strips vice-regal pomp: New governor to work parttime and live at home,' The Australian, 17 January 1996,1-2. In January 1996, the New South Wales premier was Bob Carr. For a survey of polling and republicanism in Australia since the 19605, see Murray Goot, 'Contingent Inevitability: Reflections on the Prognosis for Republicanism/ in George Winterton, ed., We, the People: Australian Republican Government (Sydney: Allen and Unwin, 1994), 63-96. A survey conducted for The Australian at the end of June 1997 showed support for a republic standing at 49 per cent, compared to 30 per cent against. The Australian Online, 2 July 1997, 'Summits shelving seen as irrelevant.' 4 Consider, for instance, 'National identity/ the first of four 'reasons for becoming a Republic' given by George Winterton, professor of law at the University of New South Wales, in his important text Monarchy to Republic: Australian Republican Government (Melbourne: Oxford University Press, 1986), 18-22, and author Thomas Keneally's much-publicized critique of Australia's non-resident head of state: 'Canada needs a Keneally to help get rid of Betty Windsor/ Financial Post, 21 October 1995, 23. In the latter article, Allan Fotheringham says that Keneally and others want Sydney's Olympic Games in the year 2000 to be an Australian affair,free of royalty. Coincidentally, the playing of 'God Save the Queen' 'every time an Australian mounted the dais' at the 1956 Melbourne Olympic Games is credited as 'the initial impetus for the 1959 formation of the Australian Republican Party.' . See Glenn A. Davies, 'A Brief History of Australian Republicanism/ in Winterton, ed., We, the People, 59. 5 Speech by the prime minister, the Hon. P.J. Keating, MP, 'An Australian Republic: The Way Forward/ House of Representatives, 7 June 1995, http://lib8.fisher.su.oz.au/Guides/Government/aust.html/tthansard.

Notes to pages 5-6 241 6 Ibid. The author and critic Robert Hughes calls the republican question 'the single most pressing issue in the broad framework of Australian politics.' He says: 'We just want to edit the last colonial bugs out of our program/ The Age Online, j July 1997, The Monarch's Magic Cord has Snapped/ 7 Independent on Sunday, 18 February 1996, i, 3, and 20; see also The Times, 8 February 1996,1,11, and 19. The following year The Guardian Weekly reported that 'support for the royal family had slumped below 50 percent for the first time/ 17 August 1997, *• 8 Founded in 1988, the tercentenary of the Glorious Revolution, Charter 88 is committed to reforming the British constitution, most particularly by limiting the concentrated power that now resides in the executive. Its literature makes 'a case for reform' on the grounds that 'no democracy can be considered safe whose freedoms are not encoded in a basic constitution' ('Charter 88' reprinted in New Statesman and Society, 2 December 1988,10-11). A citizenship of rights, freedom of information, and a reformed electoral system (along with limitations on the Crown prerogative) are the movement's staple prescriptions. On the Charter movement see Anthony Barrett, Caroline Ellis, and Paul Hirst, eds., Debating the Constitution: New Perspectives on Constitutional Reform (Cambridge: Polity Press, 1993), and, more critically, Mark Evans, Charter 88: A Successful Challenge to the British Political Tradition (Aldershot: Dartmouth, 1995) 9 Conor Cruise O'Brien, On the Eve of the Millennium (Toronto: Anansi, 1994), 124-5 an d 127. Monarchy is not alone in being vulnerable to scandal. Sir Charles Dilke, once rumoured as successor to Gladstone as leader of the Liberal Party and the most distinguished public figure in England sympathetic to republican ideas in the last half of the nineteenth century, fell victim to just such a scandal in 1885. Named as co-respondent in a sensational divorce action, Dilke's promising career and the causes he promoted suffered irreversible injury. After weighing the court testimony and evidence, his biographer, Roy Jenkins, maintains that Dilke was the object of a conspiracy whose source remains 'shrouded in mystery/ For another biographer, this time of A.V. Dicey, the source was political - to stop Home Rule for Ireland by discrediting Dilke, a friend of Irish political and social reform. Trowbridge H. Ford makes the astounding claim that Dicey, a passionate opponent of Home Rule, was 'the leading light in the plot/ Roy Jenkins, Sir Charles Dilke: A Victorian Tragedy (London: Collins, 1958), 370, and Trowbridge H. Ford, Albert Venn Dicey: The Man and His Times (Chichester: Barry Ross Publisher, 1985), 157. 10 O'Brien, On the Eve of the Millenium, 122. Anthony Barrett agrees: The key issue is not the royals it is the system/ 'Introduction' in Anthony Barrett, ed., Power and the Throne (London: Vintage, 1994), 51.

242 Notes to pages 7-11 11 Ferdinand Mount, The British Constitution Now: Recovery or Decline? (London: Mandarin, 1993), 94 (emphasis in original). The standard textbooks on Canadian government - for example, R. MacGregor Dawson, The Government of Canada (revised by Norman Ward, 5th ed., Toronto: University of Toronto Press, 1970), 158 - invariably cite Bagehot's three 'rights' of a sovereign: to be consulted, to encourage, and to warn. Yet at least one Father of Confederation had reservations about the lessons to be learned from the great work: 'You must have experience in a colony to enable you fully to appreciate the inapplicability of much of the book.' NA, MG 26A, John A. Macdonald Papers, Alexander Campbell to Macdonald, 7 March 1888, 83495-8. See also David E. Smith, 'Bagehot, the Crown and the Canadian Constitution/ CJPS 28, no. 4 (December 1995), 619-35. 12 Walter Bagehot, The English Constitution (Garden City, N.J.: Doubleday Dolphin Books, [1961]), 59. 13 See, for instance, J.G.A. Pocock, 'States, Republics, and Empires: The American Founding in Early Modern Perspective,' in Terence Ball and J.G.A. Pocock, eds., Conceptual Change and the Constitution (Lawrence: University Press of Kansas, 1988), 62. 14 H.A.L. Fisher, The Republican Tradition in Europe (New York: G.P. Putnam's Sons, 1911), 320. 15 See his 1967 essay, 'Constitutional Monarchy and the Provinces/ in Eugene Forsey, ed., Freedom and Order (Toronto: McClelland and Stewart, 1974), 21-32. 16 In the mid-1950s, when he was Canadian high commissioner to India, Escott Reid observed that although India was a republic, at the governing level relations between the English and the Indians remained close. By contrast, he said, Americans did not understand Indian manners or culture. They especially did not understand parliamentary democracy and the role played by senior civil servants. But 'at the grass roots in India, the American is likely to get on better than an Englishman.' NA, MG 31, £46, Escott Reid Papers, vol. 8 (file: 1955/22), 'My Voyage of Discovery of India: Progress Report' (June 1955)/ 917 Victor S. Mamatey and Radomir Luza, A History of the Czechoslovak Republic, 1918-1948 (Princeton: Princeton University Press, 1973), 26; R.W. SetonWatson, Masaryk in England (Cambridge: Cambridge University Press, 1943), 44; for Poland, see Green Haywood Hackworth, Digest of International Law, vol. i, chs. 1-5 (Washington: GPO, 1940), 214-17. 18 John Urh, 'Instituting Republicanism: Parliamentary Vices, Republican Virtues?' AJPS 28 (Special Issue, Australia's Republican Question, 1993), 32. 19 On 'purposive' politics in Canada, see David E. Smith, 'Party Government,

Notes to pages n-13

20

21 22

23 24 25 26

27

2

43

Representation and National Integration in Canada/ in Peter Aucoin, ed., Party Government and Regional Representation in Canada (Toronto: University of Toronto Press in co-operation with the Royal Commission on the Economic Union and Development Prospects for Canada and the Canadian Government Publishing Centre, Supply and Services Canada, 1985), 1-68. For a critique of managerial politics, see Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975), *46- See Oakeshott, ch. 2, passim for an informative discussion: 'On the Civil Condition.' Bridget Hill, The Republican Virago: The Life and Times of Catharine Macaulay, Historian (Oxford: Clarendon Press, 1992). Washington welcomed her to Mount Vernon as 'a Lady ... admired by the friends of liberty and mankind' (127) and Burke christened her 'our republican Virago ... the greatest champion amongst [the Bill of Rights people]' (173). A.V. Dicey, An Introduction to the Study of the Law of the Constitution, loth ed., intro. E.C.S. Wade (London: Macmillan, 1962), 127. Bagehot, 93. The source of Bagehot's famous dichotomy between dignified and efficient parts of the constitution can be seen in his discussion about intelligibility. For a critique of this argument and, in particular, Bagehot's belief 'in the affective poverty of republics,' see Eugene F. Miller and Barry Schwartz, The Icon of the American Republic: A Study in Political Symbolism/ Review of Politics 47, no. 4 (December 1985), 536. Nonetheless, viewers who in 1995 watched television coverage of the fiftieth anniversary celebrations of V-E Day in London, Paris, and Washington could not help noting the immense crowds gathered before Buckingham Palace in the first city and the limited public participation, even interest, in the other two locations. See David E. Smith, The Invisible Crown: The First Principle of Canadian Government (Toronto: University of Toronto Press, 1995). Stephanie Lawson and Graham Maddox, 'Introduction/ A/PS 28 (Special Issue, Australia's Republican Question, 1993), 5. Northrop Frye, 'National Consciousness in Canadian Culture/ TRSC 14 (1976), 59. Dorothy Thompson, Queen Victoria: Gender and Power (London: Virago, 1990), 92; John Cannon, The Survival of the British Monarchy/ TRHS 36 (1986), 155; Freda Harcourt, 'Gladstone, Monarchy and the '"New" Imperialism, 1868-74,' JICH 14 (1995), 20-51. Working Men's Association (London), 'An Address to the People of Canada; with their reply to the Working Men's Association' [1837] (CIHM 21616). The originators of the address referred to themselves as English 'democrats/ history calls them Chartists. The address justified revolution when 'representative rights' were destroyed. At that time, it said, 'society is dissolved into its

244 Notes to pages 14-17 original elements.' The reply acknowledged that 'the destiny of continental colonies severs them from the Metropolitan State/ 28 Hill, The Republican Virago, 210; see also Francois Furet, Interpreting the French Revolution, trans, by Elborg Forster (Cambridge: Cambridge University Press and Maison des sciences de I'homme, 1981): 'What is called "the French Revolution" ... was but the acceleration of a prior political and social trend' (15). 29 Pope to Arthur Sladen (governor general's private secretary), 29 August 1901 in Paul Stevens and John T. Saywell, eds., Lord Minto's Canadian Papers: A Selection of the Public and Private Papers of the Fourth Earl ofMinto, 1898-1904, 2 vols. (Toronto: Champlain Society, 1983), 2:63n. 30 See Harry Evans, Essays on Republicanism: Small r Republicanism, Papers on Parliament, no. 24, September 1994 (Canberra: Department of the Senate); and B. Mansfield, The Background to Radical Republicanism in New South Wales in the Eighteen-Eighties/ Historical Studies 5, nos. 17 and 20 (Nov. i95i-May 1953), 338-48. Evans was appointed Clerk of the Senate in 1988. See also Davies, 'A Brief History of Australian Republicanism.' The ARM is not the only group to advocate republicanism, but it is the largest. Others, such as Just a Republic and Real Republic, frame their criticism and ambitions in the language of citizenship. See Epilogue. 31 Mansfield, The Background to Radical Republicanism/ 343. 32 The Rt Hon. Sir Zelman Cowen, 'From Monarchy to Republic,' Constitutional Centenary 2, no. 3 (July 1993), 17. 33 Cited in Paul T. Phillips, Britain's Past in Canada (Vancouver: University of British Columbia Press, 1989), 61. 34 Globe and Mail, 6 March 1996 (editorial); 2 January 1996 (editorial); 2 January 1997 (editorial). 35 James (Viscount) Bryce, Canada: An Actual Democracy (Toronto: Macmillan Company of Canada, 1921), 53. 36 Carolyn J. Tuohy, Policy and Politics in Canada: Institutionalized Ambivalence (Philadelphia: Temple University Press, 1992). 37 NA, MG 31, £46, Escott Reid papers, vol. 28 (Constitutional Issues and Royal Title, 1942-1960). A revised version of Reid's original memorandum was dated 21 March 1944. That version, with the date 27 July 1949 added, was returned to Reid with the cited quotation written on it. Disposition of the other twenty-two 'remnants' included abolition of appeals to the Judicial Committee of the Privy Council, the Dominions Office, and use of the terms 'Dominion of Canada' and 'the Dominions'; creation of a national library, national university, and national capital; recognition of a national anthem and Canadian flag; amendment of the BNA Act by Canada only; clearer definition of Canadian citizenship; a ministry of foreign affairs rather than exter-

Notes to pages 17-21 245

38

39

40

41

42

43

44 45 46

47 48

nal affairs; a new all-Canadian constitution with strong symbolic purpose, and an expanded Canadian consular service. This same folder contains an undated memorandum from J.G. Pickersgill to Reid in which the former says that the formula for the Queen's title was the idea of Louis St Laurent: The purpose of linking the United Kingdom before Canada in the Queen's title was to indicate that the Queen was Queen of Canada because she was Queen of the United Kingdom' (emphasis added). John Conway, 'Politics, Culture and the Writing of Constitutions/ in Harvey L. Dyck and H. Peter Krosby, eds., Empire and Nations: Essays in Honour of Frederic H. Soward (Toronto: University of Toronto Press, 1969), 15-17. Frederic Harrison, Fortnightly Review n.s. 11 (1872) quoted in H.J. Hanham, ed., The Nineteenth-Century Constitution, 1815-1914: Documents and Commentary (Cambridge: Cambridge University Press, 1969), 36. NA, MG 27,114, Papers of Alexander Colin Campbell, vol. i (folder 6, Charles Morse, D.C.L.) n.d. [1910], The Impeccancy of the King: A Study in Sovereignty.' See page 32. During his career Charles Morse was both a Hansard reporter and parliamentary reporter for the Globe. David J. Bercuson and Barry Cooper, 'From Constitutional Monarchy to Quasi Republic: The Evolution of Liberal Democracy in Canada/ in Janet Ajzenstat, ed., Canadian Constitutionalism, 3792-1991 (Ottawa: Canadian Study of Parliament Group, [1992]), 21. Third Report (Statutory Instruments no. 22), in Minutes of Proceedings and Evidence of the Standing joint Committee on Regulations and Other Statutory Instruments, 12 April 1984, no. 4:10. Lloyd Waddy, 'Introduction/ in Gareth Grainger and Kerry James, eds., The Australian Constitutional Monarchy (Sydney: ACM Publishing, 1994), 8. In 1994, the author was convenor of Australians for Constitutional Monarchy. Evans, Essays on Republicanism, 11-12 and 15-16. Hugh Hood, 'Moral Imagination: Canadian Thing/ in Hood, ed., The Governor's Bridge Is Closed ([Toronto]: Oberon Press, 1973), 98. Raymond Breton, 'Multiculturalism and Canadian Nation-Building/ in Alan C. Cairns and Cynthia Williams, eds., The Politics of Gender, Ethnicity and Language in Canada (Toronto: University of Toronto Press in co-operation with the Royal Commission on the Economic Union and Development Prospects for Canada and the Canadian Government Publishing Centre, Supply and Services Canada, 1986), 31. Bruce W. Hodgms, 'Attitudes toward Democracy during the Pre-Confederation Decade' (MA thesis, Queen's University, 1955), 23. Leslie A. Marchand, ed., Byron's Letters and Journals, 11 vols. (London,

246 Notes to pages 22-5 1973-82), 9:49, quoted in Paul Johnson, The Birth of the Modern: World Society 1815-1830 (London: Weidenfeld and Nicolson, 1991), 50. 49 John R. Gillis, 'Memory and Identity: The History of a Relationship,' in John R. Gillis, ed., Commemorations: The Politics of National Identity (Princeton: Princeton University Press, 1994), 6. 50 Marcus Lee Hansen, The Mingling of the Canadian and American Peoples (Toronto: Ryerson Press, 1940). 51 R.H. Coats and M.C. MacLean, The American-Born in Canada: A Statistical Interpretation (Toronto: Ryerson Press, 1943), 24 (in a section titled 'Digression on the Canadian-Born Population of the United States'). 52 Da vies, We, The People, 50; Johnson, Birth of the Modern, 206. See also S.D, Clark, Movements of Social Protest in Canada, 1640-1840 (Toronto: University of Toronto Press, 1959), ch. 7. The Journals of the House of Commons recorded the magnitude of the movement: a total of 187,121 immigrants arrived in Canada in 1866,1867, and 1868. In the same three years, 147,599 left for the United States. Appendix no. 7 (1869), 11. 53 Hobsbawn, The Age of Revolution, 151. 54 J.G. Simcoe to Duke of Portland, 21 December 1794 in Canada, House of Commons Sessional Papers 48, no. 25 (1914), SP 2gc, 197-8. 55 S.J.R. Noel, Patrons, Clients, Brokers: Ontario Society and Politics, 1791-1896 (Toronto: University of Toronto Press, 1990); Ged Martin, 'Colonial Peerage and Bunyip Aristocracy' in The Diaspora of the British (Collected Seminar Papers no. 31, Institute of Commonwealth Relations, University of London, 1982), 100. 56 Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. (New York: Vintage Books, 1960), 23. For contrasts between Australia and Canada see Griffith Taylor, Australia: A Study of Warm Environments and Their Effect on British Settlement (London: Methuen and Co., 1940) and Canada: A Study of Cool Continental Environments and Their Effect on British and French Settlement (London: Methuen and Co., 1947). English born, Taylor held academic positions at the University of Sydney and, later, the University of Toronto. His migration to North America was occasioned by unpopularity in Australia, where his modest estimates of the country's future growth were deemed unacceptably negative. See J.M. Powell, An Historical Geography of Modern Australia (Melbourne: Cambridge University Press, 1988), 137-49. 57 See, for instance, Alastair Davidson, The Invisible State: The Formation of the Australian State, 1788-1901 (Cambridge University Press, 1991). 58 Goot, 'Contingent Inevitability/ 72. 59 Compare Frank H. Underhill, 'Some Aspects of Upper Canadian Radical Opinion in the Decade before Confederation,' Canadian Historical Associa-

Notes to pages 26-30 247

60

61 62 63 64

65 66 67

68

69

tion Annual Report, 1927, 46-61, and J.M.S. Careless, Frontier and Metropolis: Regimes, Cities and Identities in Canada before 1914 (Toronto: University of Toronto Press, 1989). J.E. Molpurgo, Journal of a Year's Residence in the United States of America, 1819 by William Corbett (London, 1983), 227, quoted in Johnson, Birth of the Modern, 530. Almost a century later an immigrant to the Canadian prairies noticed the same thing: thanks to free postage 'practically everyone [gets] a good selection of papers.' Willem de Gelder, A Dutch Homesteader on the Prairies: The Letters of Willem de Gelder 1910-13 (Toronto, 1973), 30 and 40. Nor was reading a leisure pastime; it fed an active interest in public affairs. Sara Jeanette Duncan, The Imperialist (Toronto: McClelland and Stewart, 1961), 58. Globe and Mail, 6 December 1995, Ai-2; 27 January 1996, A2. Harold A. Innis, Changing Concepts of Time (Toronto: University of Toronto Press, 1952), 69. Robert Craig Brown, Robert Laird Borden: A Biography, vol. 2, 1914-1937 (Toronto: Macmillan of Canada, 1980), 152; W.J. Hudson and M.P. Sharp, Australian Independence: Colony to Reluctant Kingdom (Melbourne: Melbourne University Press, 1988), 74. See also No. 61, 'Extracts from Memorandum by Minister of Justice [C.J. Doherty] on Article X on Draft Convenant of League of Nations/ in R.A. MacKay, ed., Documents on Canadian External Relations, vol. 2, The Pans Peace Conference of 1919 (Ottawa: Queen's Printer, 1969), 61. Hudson and Sharp, Australian Independence, 127. R. MacGregor Dawson, William Lyon Mackenzie King: A Political Biography, 1874-1923 (Toronto: University of Toronto Press, 1958), 414-16. John Buchan, Memory Hold-the-Door (London: Hodder and Stoughton, 1940), 130, cited in Gertrude Himmelfarb, Victorian Minds (New York: Alfred Knopf, 1968), 266. NA, MG 31, £46, Reid Papers, vol. 32 (file: Christie, Loring (i), 1935-41,1972, 1981), Reid to Christie, 3 December 1938. 'Confidential,' 'Notes by E.R. on Memorandum.' The Christie memorandum, which is not in the file, was composed, it appears, in response to the Munich Agreement concluded in October 1938. The Irish Constitution of 1937 made Ireland a republic in all but name. As well, it declared her to be 'sovereign, independent and democratic.' A survey of nationalist ideas in the post-war period is found in Mary Vipond, 'National Consciousness in English-Speaking Canada in the 19205: Seven Studies' (PhD thesis, University of Toronto, 1974). The studies examine the influence of English-Canadian historians, clergymen who led in formation of the United Church of Canada, leaders in the Association of

248 Notes to pages 30-3 Canadian Clubs and the Native Sons of Canada, the Canadian Authors' Association, the Group of Seven, and Canadian magazine publishers and editors. See also William H. Magney, The Methodist Church and the National Gospel, 1884-1914,' The Bulletin [United Church of Canada], no. 20 (1968), 82. 70 University of Saskatchewan Archives, Papers of F.C. Cronkite (D. Government Committees and Conferences, (i) Royal Commission on DominionProvincial Relations, Correspondence, 1937-41). T.C. Davis to Cronkite, 26 October 1938. At this date Cronkite was dean of law at the University of Saskatchewan and Davis the attorney general of Saskatchewan. The following year Davis was appointed to the bench. Later he served as deputy minister of National War Services and ended his public career as a member of the diplomatic corps. 71 Michel Brunei, Canadians et Canadiens: Etudes sur I'histoire et la pensee des deux Canadas (Montreal: Fides, 1954), I28n. 72 Nicholas Mansergh, ed., Documents and Speeches on British Commonwealth Affairs,1932-1952, 2 vols. (London: Oxford University press, 1953), 2:847 and 856, 'Extract from a speech of the Prime Minister, Pandit Jawaharlal Nehru, in the Indian Constituent Assembly, 16 May 1949.' Thirty years later, the Indian model - with a Canadian head of state and the Queen head of the Commonwealth - was recommended to the Pepin-Robarts commission. NA, RG 33/118, TFCU, vol. 3, section IV, doc. 340, Me. G. Beaudoin, 'Politics and the Constitution,' 17 July 1978, 5. 73 Ibid., 802, 'Extracts from speeches of the Taoiseach, Mr. J.A. Costello, and Mr. E. de Valera in Dail Eireann, 24 November 1948.' 74 According to Trowbridge Ford (see note 9 above) Sir Charles Dilke was one casualty of the trek. For another detour, see John Kendle, Ireland and the Federal Solution: The Debate over the United Kingdom Constitution, 1870-1921 (Montreal: McGill-Queen's University Press, 1989). 75 Kenneth McNaught, 'Canada's European Ambiance,' The Round Table 310 (1989), 146. 76 NA, MG 31, £47, Papers of Arnold Smith, vol. 81, file 4, 'Lecture Notes' drafts and texts, 1953-60, and file 19, Speeches by Arnold Smith, 1958-1964. In the second file, the notes for a speech are dated 8 May 1959; no title or place of delivery is indicated. 77 Quoted in Phillips, Britain's Past in Canada, 146-7. 78 NA, MG 26, L, Papers of Louis St Laurent, vol. 253 (Speeches, Canadian Club Address, Montreal, 6 January 1947), 2-3, 5. 79 The story, more complex than this allusion suggests, is summarized by J.L. Granatstein, How Britain's Weakness Forced Canada into the Arms of the United

Notes to pages 34-8 249

80

81 82 83 84 85

States (The 1988 Joanne Goodman Lectures, Toronto: University of Toronto Press, 1989). George Grant, Lament for a Nation: The Defeat of Canadian Nationalism(Toronto: McClelland and Stewart, 1965), 68. See also William Christian, George Grant: A Biography (Toronto: University of Toronto Press, 1993), 106-10. The Globe, 19 June 1863, quoted in Hodgins, 'Attitudes towards Democracy,' 235NA, MG 29, £29, George Taylor Denison Papers, vols. 3 and 4 (Correspondence, 1888-9), W. Kirby to Denison, 28 January 1889, p. 1704. E.P. Thompson, The Making of the English Working Class (Harmondsworth: Penguin Books, 1968), 495. Green, History of the English People (London, 1880) 4:193, quoted in Francis Parkman, Montcalm and Wolfe(London: Crowell-Collier Books, 1962), 620. Himmelfarb, Victorian Minds, 195.

2: The Appeal of Republicanism in Canada 1 J.G.A. Pocock, ed., Three British Revolutions: 1641,1688,1776 (Princeton: Princeton University Press, 1980); Pierre Rosanvallon, The Republic of Universal Suffrage,' in Biancamaria Fontana, ed., The Invention of the Modern Republic (Cambridge: Cambridge University Press, 1994), 192-205. 2 At the time of their own revolution this was the conception Americans held of the Roman republic. M.N.S. Sellers, American Republicanism: Roman Ideology in the United States Constitution (New York: New York University Press, 1994),6. 3 Prolific anguish nonetheless. For a sample, see citations in Jean Yarbrough, 'Republicanism Reconsidered: Some Thoughts on the Foundation and Preservation of the American Republic,' Review of Politics 41 (1979), 61-95, and J.G.A. Pocock, The Machiavellian Moment (Princeton: Princeton University Press, 1975). 4 Giovanni Sartori, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes (New York: New York University Press, 1994), 87. Ferrel Heady agrees: The presidency as an institution has become the most distinctive feature of both the American constitutional and adminis trative systems. 'American Constitutional and Administrative Systems in Comparative Perspective,' Public Administration Review 47 (January/February 1987), 14. 5 Scott Mainwaring, 'Presidentialism, Multipartism and Democracy: The Difficult Combination/ Comparative Political Studies 26, no. 2 (July 1993), 204-7, quoted in Sartori, Comparative Constitutional Engineering, 98, n. 6.

250 Notes to pages 38-43 6 Paul Johnson, The Birth of the Modern: World Society 1815-1830 (London: Weidenfeld and Nicolson, 1991), 607. 7 Reg Whitaker, A Sovereign Idea: Essays on Canada as a Democratic Community (Montreal: McGill-Queen's University Press, 1992), 17. 8 Fernand Ouellet and Andre Lefort, 'Viger, Denis-Benjamin/ in Dictionary of Canadian Biography, vol. 9,1861-1870 (Toronto: University of Toronto Press, 1976), 808 (emphasis added). 9 R.S. Jenkins, Canadian Civics (Toronto: Copp, Clark Co., 1910 B.C. ed.; 1918 Ontario), 166. 10 Contrasts between Canadian and American politics continue, always to the disadvantage of the Republic. See 'Chretien Intolerant of "Grandstanding" Grits,' Globe and Mail, 29 April 1996, Ai-3. 11 Stanford M. Lyman, The Acceptance, Rejection, and Reconstruction of Histories: On Time Controversies in the Study of Social and Cultural Change/ in Richard Harvey Brown and Stanford M. Lyman, eds., Structures, Consciousness and History (Cambridge: Cambridge University Press, 1978), 91. 12 Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution/ YLJ 93 (1984), 1043. 13 Z.S. Fink, The Classical Republicans: An Essay in the Recovery of a Pattern of Thought in Seventeenth-Century England, 2nd ed. (Evanston: Northwestern University Press, 1962), 3. 14 See Chapter i, n. 20. 15 Harry Evans, 'Introduction: The Agenda of the True Republicans/ in Harry Evans, Essays on Republicanism: Small r Republicanism, Papers on Parliament, no. 24, September 1994 (Canberra: Department of the Senate), 14. 16 Bernard Manin, 'Checks, Balances and Boundaries: the Separation of Powers in the Constitutional Debate of 1787,' in Fontana, The Invention of the Modern Republic, 59. But see M.J.C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967), who speaks of 'the class basis of the theory of mixed government/ 33. 17 Ackerman, 'Discovering the Constitution/ 1024, n. 19. 18 Vile, Constitutionalism and the Separation of Powers, 34. 19 Ibid., 101. 20 Fink, The Classical Republicans, 26. 21 Ibid., 12. 22 Unless otherwise cited, material in this and the following paragraph is based on a reading of Fink, The Classical Republicans, chs. 2 and 3. Two important proposals made by Harrington but not discussed here are, first, provision for a constitutional dictator to protect the republic in time of emergency. The early-twentieth-century parliamentary equivalents were the Defence of the

Notes to pages 43-5

23 24

25 26 27 28

29

30 31 32

251

Realm Act, the War Measures Act, and the War Precautions Act introduced at the outset of the First World War in Great Britain, Canada, and Australia respectively. See David E. Smith, 'Emergency Government in Canada and Australia, 1914-1919: A Comparison' (PhD dissertation, Duke University, 1964). A second proposal urged creation of an 'agrarian law' that would see the distribution of land parallel the division of power. 'Power followed land' and, therefore, it was necessary that those with political power should also have access to land. Otherwise the balance of the constitution would be destroyed. John Cannon, The Survival of the British Monarchy/ TRHS 36 (1986), 145. See Fink, The Classical Republicans, 97-8. In her study of Catharine Macaulay, Bridget Hill remarks on the importance of religion to the course of the American revolution. She quotes a colonist of 1763 who wrote that he and his fellows had 'fled hither as to an asylum from episcopal persecution, seconded by royal power.' Carl Bridenbaugh, Mitre and Sceptre (New York, 1962), xiv, 225, quoted by Hill, The Republican Virago: The Life and Times of Catharine Macaulay, Historian (Oxford: Clarendon Press, 1992), 187. Sellers, American Republicanism, 51 and 61. H.A.L. Fisher, The Republican Tradition in Europe (New York: G.P. Putnam's Sons, 1911), 159. E.P. Thompson, The Making of the English Working Class (Harmondsworth: Penguin Books, 1968), 545. See Linda Colley, 'The Apotheosis of George III: Loyalty, Royalty and the British Nation, 1760-1830,' Past and Present 102 (February 1984), 94-129, and Raphael Samuel, ed., Patriotism: The Making and Unmaking of British National Identity, 3 vols. (London: Routledge, 1989), vol. i, History and Politics. Among the contributions to the Samuel volume, see Hugh Cunningham, The Language of Patriotism,' 57-89, and Christopher Hill, 'History and Patriotism,' 3-8. J.G.A. Pocock, 'States, Republics, and Empires: The American Founding in Early Modern Perspective/ in Terence Ball and J.G.A. Pocock, eds., Conceptual Change and the Constitution (Lawrence: University of Kansas Press, 1988), 63. Wilfried Nippel, 'Ancient and Modern Republicanism: "Mixed Constitution" and "Ephors/" in Fontana, The Invention of the Modern Republic, 19. David E. Smith, 'Patronage in Britain and Canada: An Historical Perspective/ fCS 22, no. 2 (Summer 1987), 34-53. A.S. Foord, The Waning "Influence" of the Crown/ EHR 62 (October 1947), 484-507.

252 Notes to pages 46-52 33 Nippel, 'Ancient and Modern Republicanism/ 17. For summary of the results of the Reform Bill see H.W.V. Temperley, 'Great Britain, 1815-32,' ch. 18, The Cambridge Modern History, vol. 10, The Restoration (Cambridge: Cambridge University Press, 1907), 616-18. 34 G.M. Young and W.D. Hancock, eds., English Historical Documents 1833-1874 (London: Eyre and Spottiswoode, 1956), 6. Stockmar was family adviser to the Coburgs and sometime constitutional tutor to the Prince Consort. 35 Walter Bagehot, The English Constitution (Garden City, N.J.: Doubleday Dolphin Books, 1961), chs. 2 and 3; Memo by Gladstone of audience with the Queen, Windsor, 21 Dec. 1871, quoted in Freda Harcourt, 'Gladstone, Monarchism and the "New" Imperialism, 1868-74,' JCIH14, no. i (October 1985), 30. 36 Hill, The Republican Virago, 46. See also ibid., 184, n. i. 37 Leon Dion, '1776-1976: Le deroulement d'une revolution permanente,' TRSC 14 (1976), 71-82. 38 EJ. Hobsbawn, The Age of Revolution, 1789-1848 (New York: Mentor Book, 1962), 76. 39 Sellers, American Republicanism, 7. 40 Ibid., 107. 41 Ackerman, 'Discovering the Constitution,' 1028, n. 35. 42 Sellers, American Republicanism, 28. 43 Ibid., 39 and Pocock, 'States, Republics and Empires,' 66. 44 Daniel Elazar, 'Our Thoroughly Federal Constitution/ in Robert A. Goldwin and William A. Schambra, eds., How Federal Is the Constitution? (Washington: American Enterprise Institute for Public Policy Research, 1987), 56. 45 Russell L. Hanson, '"Commons" and "Commonwealth" at the American Founding: Democratic Republicanism as the New American Hybrid/ in Ball and Pocock, Conceptual Change and the Constitution, 173. 46 Pocock, 'States, Republics and Empires/ 71. 47 Sellers, American Republicanism, 57-8. 48 Ibid., 54. 49 Ackerman, 'Discovering the Constitution/ 1061. See also Jean Yarborough, 'Republicanism Reconsidered: Some Thoughts on the Foundation and Preservation of the American Republic/ Review of Politics 41 (1979), 81 (italic in original). 50 George Stead Veitch, The Genesis of Parliamentary Reform (London: Constable and Co., 1913), 139. The great John Marshall remained unimpressed. He was appalled by 'the Course of the Revolution [in France]/ which in his opinion was anything but 'a free, regular and deliberate act of the nation.' Thomas C. Shevory, John Marshall's Law: Interpretation, Ideology, and Interest(Westport, Conn.: Greenwood Press, 1994), 93.

Notes to pages 52-5 253 51 Joyce Appleby, Liberalism and Republicanism in the Historical Imagination (Cambridge: Harvard University Press, 1992), 241. Turgot declared himself the enemy of bicameralism. For a dated but exhaustive history of the twohouse system in the United States, see Thomas Francis Moran, The Rise and Development of the Bicameral System in America (Baltimore: Johns Hopkins Press, 1895). 52 Francois Furet, Interpreting the French Revolution, translated by Elborg Forster (Cambridge: Cambridge University Press and Maison des Sciences de 1'Homme, 1981), 36. 53 Sartori, Comparative Constitutional Engineering, 128. 54 This question is explored in Peter Murphy, 'Republican Jurisprudence and the Modern Constitution,' Thesis Eleven, no. 31 (1992), 163-5, and Andrew W. Fraser, The Spirit of the Laws: Republicanism and the Unfinished Project of Modernity (Toronto: University of Toronto Press, 1990), see esp. ch. 4. 55 Sellers, American Republicanism, 19. 56 Ibid., 27. 57 Johnson, Birth of the Modern, 106. 58 Colley, The Apotheosis of George III,' 106. 59 Eric Hobsbawn and Terence Ranger, eds., The Invention of Tradition (Cambridge: Cambridge University Press, 1983). See, for example, David Cannadine, The Context, Performance and Meaning of Ritual: The British Monarchy and the "Invention of Tradition; c. 1820-1877,"' ibid., 101-64. But see also Walter L. Arnstein, 'Queen Victoria Opens Parliament: The Disinvention of Tradition/ Historical Research 63, no. 151 (June 1990), 178-94. 60 'A Decimal Currency - Weights and Measures/ Third Report of the Standing Committee on Public Accounts/ Appendix no. 10 (J.J.) to the Thirteenth Volume of Journals of Legislative Assembly of the Province of Canada, 1854-55. 61 The iconography of Canadian currency deserves examination. Only with the introduction of Bank of Canada notes in 1935 did the monarch begin to appear on most denominations. To celebrate George V's silver jubilee that year, members of the royal family appeared on different denominations. But in 1937 and again in 1954, George VI and Elizabeth II dominate the currency. In 1967, the Queen occupied the $1, $2, and $20 bills and the four longest serving prime ministers the other denominations. After Confederation and before 1935, the Dominion of Canada and the individual banks issued their own currency. For example, between its founding in 1872 and amalgamation with the Canadian Bank of Commerce in 1923, the Bank of Hamilton produced nine issues, and only once (1904) did the monarch (Edward VII) appear (on the $20 and $100 bills). The Home Bank (1903-23) never issued a bill with the sovereign's image but did produce currency depicting patriotic

254 Notes to pages 56-7 monuments commemorating the Fenian Raids, Kiel Rebellion, Boer War, Issac Brock, and Samuel de Champlain. Britannia, Columbus, Indian maidens, the Parliament Buildings, Wolfe, Montcalm, and Jacques Cartier, along with beehives, anvils, livestock, cherubs, and produce of a wide assortment appear on the notes of many banks. The Dominion of Canada notes were only slightly more monarchically inclined: Queen Victoria appeared on the $500 bill in 1870 and George V and Queen Mary in 1911 and, again, in 1924. The most distinctive practice was to issue new currency to mark the appointment of a new governor general. The Dufferins (the consort had her own denomination) were the first to appear (1878) and the Connaughts, including a $1 bill bearing the picture of their daughter, Princess Patricia, the last (1917). Coins were another matter. After Confederation the monarch's profile invariably appeared, while the reverse bore a display, singly or in wreaths, of maple leaves. The arboreal monopoly ceased in 1936 with the appearance on the dime of a fishing schooner popularly christened the Bluenose. Patriotic images during the Second World War gave way afterward to depiction of flora, fauna, and natural resources. See J.E. Charlton, The Charlton Standard Catalogue of Canadian Paper Money, ist ed. (Toronto: Charlton Press, 1980), and 1976 Standard Catalogue of Canadian Coins, Tokens arid Paper Money, 24th ed. (Toronto: Charlton International Publishing, 1979). 62 Alan Gowans, The Canadian National Style/ in W.L. Morton, ed., The Shield of Achilles: Aspects of Canada in the Victorian Age (Toronto: McClelland and Stewart, 1968), 212. 63 Henry-Russell Hitchcock and William Seale, Temples of Democracy: The State Capitols of the U.S.A. (New York: Harcourt Brace Jovanovich, 1976), 63. 64 Ibid., 96. 65 E.E. Myers to Governor H.P. Baldwin, Springfield, 16 April 1871, Michigan State Archives in ibid., 143. 66 Bernard S. Cohen, 'Anthropology and History in the 19805,' Journal of Interdisciplinary History 12, no. 2 (Autumn 1981), 250. 67 Carolyn A. Young, The Glory of Ottawa: Canada's First Parliament Buildings (Montreal: McGill Queen's University Press, 1995),'Documents relating to the 1859 Ottawa Parliament Buildings Competition' are found as Appendices to The Glory of Ottawa and in Geoffrey Simmins, ed., Documents in Canadian Architecture (Peterborough: Broadview Press, 1992), 59-76. 68 Simmins, ed., Documents in Canadian Architecture, 60. For discussion of the thesis that 'Machiavellian republicanism ... entered Australian political culture with the Trojan horse of neo-classicism,' see James Warden, The Fet-

Notes to pages 57-8 255

69

70 71 72 73 74 75

76

tered Republic: The Anglo-American Commonwealth and the Traditions of Australian Political Thought/ AJPS 28 (Special Issue, 1993), 89-90. Warden's discussion begins with Robert Dixon, The Course of Empire: Neo-Classical Culture in New South Wales, 1788-1860 (Melbourne: Melbourne University Press, 1986). For the amateur, architectural style designation is perilous and confusing. The Parliament Buildings at Queen's Park, Toronto, generated a good deal of controversy at the time of the international competition leading to selection of a design. Still, nearly everyone agreed that the buildings, opened in 1893, owed a strong debt to the Romanesque influence of the popular American architect, H.H. Richardson. The Globe, however, described the design as 'Nero-Greek/ 13 August 1886, cited in Angela Carr, Toronto Architect: Edmund Burke: Redefining Canadian Architecture (Montreal: McGill-Queen's University Press, 1995), 113. The history of Queen's Park and its Georgian predecessor further south is recalled by Eric Arthur, From Front Street to Queen's Park: The Stori/ of Ontario's Parliament Buildings (Toronto: McClelland and Stewart, 1979). The late nineteenth and early twentieth century was the golden age of legislatures, and the structures built to house them from Fredericton to Victoria sought to communicate that pre-eminence. Literature given visitors to the buildings today depreciates the endeavour either by being terse (in New Brunswick, they are described in two words 'Corinthian architecture') or cryptic (the Saskatchewan buildings are said to be 'a free adaptation of the English Renaissance style with elements of Louis XVI'). Victoria Times, 10 February 1898, quoted in Martin Segger, ed., The British Columbia Parliament Buildings (Vancouver: Arcon, 1979), 18. Roland Quinault, 'Westminster and the Victorian Constitution,' TRHS (1992), 82. Ibid., 84. Cited in M.H. Port, ed., The Houses of Parliament (New Haven: Yale University Press, 1976), 94. Young, The Glory of Ottawa, 89. All quotations in this paragraph come from Luc Noppen and Gaston Deschenes et al., Quebec's Parliament Building: Witness to History ([Quebec]: Les Publications du Quebec, 1986), 58,139,155. See Fern Bayer, The "Ontario Collection,"' in Arthur, From Front Street to Queen's Park, 127-41; Segger, The British Columbia Parliament Buildings; Gordon Barnhart, Sentinel on the Prairies: The Saskatchewan Legislative Building (Regina: [Province of Saskatchewan], 1987); 'New Bronze Statue is the Riel Thing,' Globe and Mail, 13 May 1996, A2.

2 y. Canadian Attitudes: The Search for Constitutional Balance in PreConfederation Canada \ Jeffrey L. McNairn, Tublius of the North: Tory Republicanism and the American Constitution in Upper Canada, 1848-54,' CHjR 77, no. 4 (December 1996), 509. This chapter was written before the McNairn article appeared. The article offers a useful analysis, at both the micro- and macrolevels, of American constitutional ideas as interpreted during a six-year period by critics of responsible government. 2 James Cosens Ogden, A Tour through Upper and Lower Canada, by a citizen of the United States containing a view of the present state of religion ... (Litchfield [Conn.], 1799), 55 (CIHM 20852). 3 William Wood, ed., Select British Documents of the Canadian War of 1812 (Toronto; The Champlain Society, 1920), vol. I, 396, quoted in S.D. Clark, Movements of Political Protest in Canada, 164.0-1840 (Toronto: University of Toronto Press, 1959), 221. 4 Gad Horowitz, 'Conservatism, Liberalism, and Socialism in Canada: An Interpretation/ CJEPS 32, no. 2 (May 1966) 143-61; Louis Hartz, The Founding of New Societies: Studies in the History of the United States, Latin America, South Africa, Canada and Australia (New York: Harcourt, Brace and World, 1964), ch. 4, esp. 8off. 5 Kenneth McNaught, 'Political Trials and the Canadian Political Tradition/ UTL] 24 (1974), 161. 6 J.G. Bourinot, The Canadian Dominion and Proposed Australian Commonwealth: A Study in Comparative Politics/ TRSC Section II (1895), 37. 7 Le Vrai-Canadian, 8 aout et 25 juillet 1810 quoted in Jean-Pierre Wallot, Un Quebec qui bourgeait (Sillery: Boreal, 1973), 294. 8 Chapter 2,15. 9 Robin W. Winks, The Relevance of Canadian History: US and Imperial Perspectives. The 1977 Joanne Goodman Lectures (Toronto: Macmillan, 1979). 10 See, for example, David Mills, The Idea of Loyalty in Upper Canada, 1784-1850 (Montreal: McGill-Queen's University Press, 1988), and S.F. Wise, God's Peculiar Peoples: Essays in Political Culture in Nineteenth-Century Canada, A.B. McKillop and Paul Romney, eds. and intro. (Ottawa: Carleton University Press, 1993). 11 The quotations are from Nova Scotia and Upper and Lower Canada. All are from Clark, Movements of Political Protest in Canada, 137,172, 296, 228, and 229. 12 Both Tonge and Gourlay appear regularly in accounts of early-nineteenthcentury Nova Scotia and Upper Canada. J. Murray Beck comments on Joseph

Notes to pages 66-9 257

13

14

15 16

17

18 19

20

21 22

Howe's 'undisguised admiration for Tonge' because he was politically and morally unorthodox. Joseph Howe, vol. i, Conservative Reformer, 1804-1848 (Montreal: McGill-Queen's University Press, 1982), 15. In her 1927 study of Political Unrest in Upper Canada, 1815-1836 (reprinted at Westport, Conn.: Greenwood Press, 1975), Aileen Dunham communicates Gourlay's mesmeric appeal but also says he was 'never properly balanced' (52). Journals of the House of Commons (Great Britain), 49, 586 and 609 (1794), quoted in George Stead Veitch, The Genesis of Parliamentary Reform (London: Constable and Co., 1913), 306. Nova Scotia Ai3o, 233-4, quoted in Clark, Movements of Political Protest in Canada, 135, and Public Archives of Nova Scotia, Calendar of Official Correspondence and Legislative Papers, Nova Scotia, 1802-1815 (Halifax, 1936), 11617, quoted in Clark, ibid., 137. See also W.L. Morton, The Local Executive in the British Empire, 1763-1828,' EHR 78 (1963), 446. E.P. Thompson, The Making of the English Working Class (Harmondsworth: Penguin Books, 1968), 195. Jean-Paul Bernard, Les Rouges: Liberalisme, Nationalisme et Anticlericalisme au Milieu du XIXe Siecle (Montreal: Les Presses de 1'Universite du Quebec, 1971), 61-73 and 283-4F. Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (Toronto: University of Toronto Press, 1993), 27 and 116-17 (emphasis added). Greenwood cites the Alien Act as 'an early example of the ease with which Canadians have enacted drastic security legislation in times of apparent crisis,' 116. Ibid., 185. See Jean-Pierre Wallot, Un Quebec aui bougeait, ch. 6, 'La Pensee revolutionaire et reformiste dans Le Bas-Canada,' and Wallot, 'La Revolution franchise, Le Canada et les droits de rhomme, 1789-1840,' Etudes Canadiennes I Canadian Studies 28 (1990), 7-18. Mark Olsen and Louis-Georges Harvey, 'Computers in Intellectual History: Lexical Statistics and the Analysis of Political Discourse/ Journal of Interdisciplinary History 18, no. 3 (Winter 1988), 449-64. In this paragraph Olsen and Harvey quote Franqois Furet (trans. Elborg Forester), Interpreting the French Revolution (Cambridge: Cambridge University Press, 1981), 46. Martin Wight, The Development of the Legislative Council, 1606-1945 (London: Faber and Faber, 1946), 46. Claude Ryan, 'Introduction: Our Parliamentary Heritage,' in Janet Ajzenstat, ed., Canadian Constitutionalism, 3791-1991 (Ottawa: Canadian Study of Parliament Group, [1992]), 7. Ryan's claim to continuity between the parliamentary regimes of 1791 and 1867 is borne out in Gary O'Brien,

258 Notes to pages 69-74 Tre-Confederation Parliamentary Procedure: The Evolution of Legislative Practice in the Lower Houses of Central Canada, 1792-1866' (PhD thesis, Carleton University, 1988). 23 For the procedures followed in Prince Edward Island, see Frank MacKinnon, The Government of Prince Edward Island (Toronto: University of Toronto Press, 1951), ch. 3. 24 J.E. Read, The Early Provincial Constitutions/ CBR, no. 4 (April 1948), 633. 25 M.J.C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967), 126-7. See also Robert MacKay, The Unreformed Senate of Canada, rev. ed. (Toronto: McClelland and Stewart, 1963), ch. 2, 'Colonial Antecedents.' 26 Edgar Mclnnis, Canada: A Political and Social History (New York/Toronto: Rinehart and Co., 1947); Arthur R.M. Lower, Colony to Nation: A History of Canada (Toronto: Longmans, Green and Co., 1946), 124; Donald Creighton, Dominion of the North: A History of Canada (Toronto: Macmillan Co. of Canada, 1962), 180. 27 The Parliamentary Debates of England 29 (1791-92), 409. Quotations in the next paragraph are from this source, 385-412. 28 Fernand Ouellet and Andre Lefort, 'Denis-Benjamin Viger/ DCB, 811. 29 Canada, House of Commons Sessional Papers,4&, no. 25 (1914), SP 29b, Appendix G, Calendar of the Public Letters in the Neilson Collection between the Years 1801 and 1824,' draft letter, 1822 (emphasis in original). 30 Jacques Monet, S.J., The Last Cannon Shot: A Study of French-Canadian Nationalism, 1837-1850 (Toronto: University of Toronto Press, 1969), 28. 31 Quoted in Thompson, The Making of the English Working Class, 99. 32 Christopher Hill, 'History and Patriotism/ in Raphael Samuel, ed., Patriotism: The Making and Unmaking of British National Identity, 3 vols. (London: Routledge, 1989), 1:5. 33 NA, CO42/2i8, James Stephen, analysis of Report of the Select Committee on the Civil Government of Canada (dated 22 July 1828), 4i4b. Inclusive pagination for analysis is 385-466. 34 Ibid., 428b and 446b. 35 The Ninety-two Resolutions, 1834,' in W.P.M. Kennedy, ed., Statutes, Treaties and Documents of the Canadian Constitution, 1713-1929 (Toronto: Oxford University Press, 1930), 270-90. 36 Le Courier de Quebec, 8 juin 1808,11 mai, ler et 4 juin 1808, quoted in Wallot, Un Quebec qui bougeait, 311, n. 206. 37 Egerton Ryerson, The Loyalists of America and Their Times: From 1620 to 1816, 2nd ed., 2 vols. (Toronto: William Briggs, 1880), 2:379, quoted in Dennis

Notes to pages 75-9 259

38

39

40 41

42 43 44

45

46

47

Duffy, Gardens, Covenants and Exiles: Loyalism in the Literature of Upper Canada/ Ontario (Toronto: University of Toronto Press, 1982), 27. Chester W. New, The Rebellion of 1837 in Its Larger Setting,' Canadian Historical Association Report (1937), 13-14. See also R.A. MacKay, The Political Ideas of William Lyon Mackenzie/ CJEPS 3, no. i (February 1937), 13. Robert Gaucher, 'Class and State in Lower and Upper Canada, 1760 to 1873: Groundwork for the Analysis of Criminal-Justice in Pre-Confederation Canada' (PhD thesis, University of Sheffield, 1982), 182. But the merchants were not the only supporters of annexation: '[V]ivre sous les institutions americanines allait donner aux Canadiens la formation politique qui leur manquait.' That was the opinion of one writer to L'Avenir in 1849. Quoted in Bernard, Les Rouges ..., 67. See The Seventh Report on Grievances, 1835,' in Kennedy, ed., Statutes, Treaties and Documents of the Canadian Constitution, 295-307. Review of Nicholas Flood Davin, The Irishman in Canada (Toronto: MacNear and Co., 1877), in Canadian Monthly 12 (December 1877), 660-2. See also Mills, The Idea of Loyalty in Upper Canada, 1784-1850,104-7. 'Invariably' may be an exaggeration; see Janet Ajzenstat, 'Canada's First Constitution: Pierre Bedard on Tolerance and Dissent,' CJPS 23, no. i (March 1990), 39-57. Ajzenstat says Bedard advocated ministerial responsibility as early as 1807 (43-4). Aileen Dunham, Political Unrest in Upper Canada, 1815-1836, 4. Ibid., 24. Canada, House of Commons Sessional Papers 48, no. 25 (1914), SP 2gC, 'Documents Relating to Constitutional History of Canada, 1791-1818.' Correspondence between Simcoe and Portland and Simcoe and lieutenants of counties is found in SP 290 Inclusive dates are 21 December 1794 to 30 October 1795. See also A.F. Madden, 'Constitution-Making and Nationhood: The British Experience - an Overview,' Journal of Commonwealth and Comparative Politics 26, no. 2 (July 1988), 123-34, and Madden, '"Not for Export": The Westminster Model of Government and British Colonial Practice,' Journal of Imperial and Commonwealth History 8, no. i (October 1979), 10-29. Lord Glenelg to Earl of Gosford, 31 August 1837, in Canada, House of Commons Sessional Papers 60, vol. 5, (1924), SP23, The Durham Papers/ Appendix B to Report of the Public Archives for the Year 1923. Four months earlier, by way of a debate on the British government's answer to the ninety-two resolutions, the House of Commons had heard strong arguments for and against an elected legislative council. Parliamentary Debates (Commons), 37,14 April 1837, cols. 1209-90. McNaught, 'Political Trials and the Canadian Political Tradition/ 151.

260 Notes to pages 79-82 48 For illustrations of these activities, see Clark, Movements of Political Protest in Canada, chs. 14 and 15. 49 Bourinot, The Canadian Dominion and the Proposed Australian Commonwealth/ 17. 50 For a description and illustration of 'un drapeau a 1'ombre duquel [Papineau et les patriotes de 1837] devaient conquerir nos libertes/ see Joseph Le Roux, Le Medallier du Canada/The Canadian Coin Cabinet, 2nd ed. (1892, reprint Winnipeg: Canadian Numismatic Publishing Institute, 1964), 139-41. For a description and illustration of Patriote money, see ibid., 138-9. The phrygian red bonnet/ which Pamela M. Pilbeam, Republicanism in Nineteenth Century France, 1814-1871 (London: Macmillan, 1995), describes as 'the potent symbol of liberty of the 17905,' appears on one bank token of 1837. See J.E. Charlton, 1976 Standard Catalogue of Canadian Coins, Tokens and Paper Money, 24th ed. (Toronto: Charlton International Publishing, 1975), 30. 51 R.A. MacKay, The Political Ideas of William Lyon Mackenzie/ CJEPS 3, no. i (February 1937), i. 52 See William C. Beeching, Canadian Volunteers in Spain, 193*5-1939 (Regina: Canadian Plains Research Centre, 1989). In his Diary, King had kind words for his grandfather: 'If the Rebellion had succeeded, he [Mackenzie] would have been in the same position as Washington though, I think, his view would have been to keep Canada a British country and not make it an independent Republic even after the Rebellion.' 22 October 1937,751 (typewritten 971). Sixty years after the first volunteers left Canada, the federally appointed Historic Sites and Monuments Board of Canada recognized the Mac-Paps by means of a plaque on a rock 'brought from Spain and planted outside the Ontario Legislature.' Globe and Mail, 5 June 1995, A4. 53 G.M. Craig, ed., Lord Durham's Report: An Abridgement of Report on the Affairs of British North America by Lord Durham (Toronto: McClelland and Stewart, 1968), 57-8. 54 For development of this interpretation, see Janet Ajzenstat, The Political Thought of Lord Durham (Kingston and Montreal: McGill-Queen's University Press, 1988), ch. 6. 55 S.E. Finer, 'Patronage and the Public Service: Jeffersonian Bureaucracy and the British Tradition/ Public Administration 30 (Winter 1952), 340. Commenting in 1836 on proposals to make the Legislative Council of Lower Canada elected, one of the colonial secretary's correspondents observed that 'the same thing will happen as happened in this country [Great Britain] before the passing of the Reform Bill, when a majority of the House of Commons being notoriously the nominees of the House of Lords, spoke their senti-

Notes to pages 82-7

261

ments and did their will... The House of Lords became what the House of Commons should have been - the consenting rather than the consulting body.' James Christie Esten, 'Observations on the Constitutions, Political and Judicial, of the British Colonies, with Proposed Amendments, suggested by the political differences now existing in the provinces of Upper and Lower Canada' (London: Richards and Co. Law Booksellers and Publishers, 1836), 5 (CIHM 21523). 56 Vile, Constitutionalism and the Separation of Powers, ch. 5, The Matchless Constitution and Its Enemies.' 57 Ged Martin, 'Confederation Rejected: The British Debate on Canada, 18371840,' //CH 11, no. i (October 1982), 33-57. 58 Craig, Lord Durham's Report, 67. 59 Andre Laurendeau, 'We Are the Vanquished' (18 May 1954), in Philip Stratford, trans., Andre Laurendeau: Witness for Quebec. (Toronto: Macmillan of Canada, 1973), 139. And according to Edward Gibbon Wakefield, a man with a keen eye for demographic differences: Tn a French Canadian Parish the cure supplied the place of civil institutions.' Elizabeth Nish, ed., Debates of the Legislative Assembly of United Canada, vol. 3 (1843), 538- The Debates are published under the direction of the Centre d'Etude du Quebec and the Centre de recherche en histoire economique du Canada franc,ais. In 1970, the general editor was Elizabeth Nish and the publisher was Presses de 1'Ecole des Hautes Etudes Commerciales, Montreal, Quebec. 60 This statement appears as part of the resolutions in reply to the speech of the governor general, 18 June 1841, in Elizabeth Nish, ed., Debates of the Legislative Assembly of United Canada, vol. i (1841), 57. 61 DLAUC, 9 April 1849 (VIH.II.i849), 1791. 62 DLAUC, 25 February 1845 (IV.II.1844-5), 1724. (T.C. Aylwin). 63 DLAUC, 7 April 1856 (XIII.III.i856), 1171. 64 DLAUC, 21 May 1850 (1X1.1850), 103. 65 DLAUC, 27 July 1841 (1.1841), 421-2. 66 DLAUC, 4 December 1854 (XII.IV.i844-5), 1579. 67 DLAUC, 10 June 1851 (X.I.i85i), 325-6. 68 DLAUC, 25 June 1841 (1.1841), 144,145 and 19 September 1842, (11.1842), 93-469 DLAUC, 21 May 1850 (1X1.1850), 74; 12 June 1850 (1x1.1850), 514; and 31 March 1853 (XI.III.i852-3), 2398-2401. 70 DLAUC, 25 May 1849 (VIII.III.i849), 243771 DLAUC, 27 September 1852 (XI.III.i852-3), 693. 72 DLAUC, 3 June 1850 (1X1.1850), 374. 73 DLAUC, 22 May 1850 (1X1.1850), 135.

262 Notes to pages 87-96 74 DLAUC, 12 May 1852 (XI.IV.i852-3), 3042 (Cauchon); 27 March 1855 (XII.VI.1854-5), 2470-1. 75 DLAUC, 27 May 1852 (XI.IV.i852-3>, 3148 and 19 October 1852 (XI.II. 18523), 1105 (Brown). 76 DLAUC, 5 October 1843 (111.1843), 155. 77 See also 19 October 1852 (XIII.II.1852-3), 1091 (Provincial Secretary Morin) and 27 March 1852 (XIII.II. 1856), 897 (Attorney General Drummond). 78 DLAUC, 13 May 1853 (XI.IV. 1852-3), 3059 (Gamble). 79 Still, it was not ignored. The British American League held two conventions in 1849. At both the question of an elective legislative council was raised. Although rejected at the first (Kingston) convention, arguments in favour of the proposal clearly communicate the unease felt by proponents at 'an arbitrary unicameral system of government [being] set up in Canada in place of the well balanced constitution of England.' Cephas D. Allin, The British North America League, 1845,' Ontario Historical Society, Papers and Research, 13 (1915), 103. 80 J.M.S. Careless, Brown of The Globe, vol. i, The Voice of Upper Canada, 18181859 (Toronto: Macmillan Co. of Canada, 1959), 161-2. DLAUC, 27 March 1855 (XII.VI.1854-5)/2474-581 DLAUC, 27 March 1855 (XII.VI. 1854-5), 2483. 82 DLAUC, 19 October 1852 (XI.II. 1852-3), 1105. 83 Duncan McArthur, 'A Canadian Experiment with an Elected Upper Chamber,' TRSC 24 (1930), Section II, 87. 84 Robert Mackay, The Unreformed Senate of Canada (Toronto: McClelland and Stewart, 1963), 26-32. 85 DLAUC, 13 May 1852 (XI.IV. 1852-3), 3060 (Gamble). 86 DLAUC, 13 September 1852 (XI.I.i852-3), 397. 4: Representation 1 NA, MG 30, 045, John W. Dafoe Papers (M74), John Ewart to John W. Dafoe, 24 December 1926. Ewart continued: 'Giving a situation or an association a descriptive title always assists the grasping of the conception. In this I think it is of extreme importance, for the term Personal Union excludes the idea of political - I mean parliamental organizational [sic] - association of any kind.' 2 Leo Kohn, The Constitution of the Irish Free State (London: George Allen and Unwin, 1932), 37 (emphasis added). Ireland between the wars holds interest for Canadians on several counts. First, the constitution of the Irish Free State was monarchical in design and republican in tone. As Kohn notes, there was a king but he had no prerogative (13). Secondly, the Anglo-Irish Treaty

Notes to pages 96-8

263

(1921), Article 2, and the Irish Free State Constitution (1922), Article 41, cited Canada as the model to guide the selection and conduct of the governor general. On the latter point, Article 41 said 'that the Representative of the Crown shall act in accordance with the law, practice, and constitutional usage governing the like [matters] ... in the Dominion of Canada.' Alan J. Ward, The Irish Constitutional Tradition: Responsible Government and Modern Ireland, 17821992 (Washington: Catholic University of America Press, 1994), 180 and 329. 3 Globe and Mail, 7 September 1995, Ai/A4. Nowhere in the long preamble, which speaks of Quebec 'becoming a nation' and of its 'people ... in full possession of all the powers of a state/ or in the draft legislation of 1994, which also speaks of Quebec as 'a sovereign country/ is there any reference to the constitutional condition of Quebec once separation is achieved. Globe and Mail, 7 December 1994, A4. The word 'republic' did appear, but in a Globe and Mail editorial, 8 December 1994, critical of the draft legislation for failing to provide an alternative to sovereignty: '[Parizeau] turns the National Assembly into a Mock Parliament in the Republic of Presumption.' 4 Arthur Sheps, The American Revolution and the Transformation of English Republicanism/ Historical Reflections 2, no. i (Summer 1975), 20 (emphasis in original). 5 According to Gordon S. Wood, at the beginning of the Revolution American republicans were not predisposed to reject the concept of virtual representation; republicanism presumed 'a transcendent public good' superior to any particular interests. The grounds for their complaint lay in the belief that in an empire, the interests of mother country and colonies were 'inherently]' disparate. Representation in the American Revolution (Charlottesville: University Press of Virginia, 1969), 10-11 and 7. 6 See Wood, Representation, 43-4. This paragraph is based largely on a reading of Wood and Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: W.W. Norton and Co., 1988). See, for example 267, 25 sf. 7 Ernst H. Kantorowicz, The King's Two Bodies: A Study in Mediaval Political Theology (Princeton: Princeton University Press, 1957), 382. 8 M.N.S. Sellers, American Republicanism: Roman Ideology in the United States Constitution (New York: New York University Press, 1994), 177, but see Wood, Representation, 47. 9 R. Kenneth Carty and W. Peter Ward, The Making of a Canadian Political Citizenship/ in R. Kenneth Carty and W. Peter Ward, eds., National Politics and Community in Canada (Vancouver: University of British Columbia Press, 1986), ch. 4.

264 Notes to pages 99-101 10 Tony Wright, Citizens and Subjects: An Essay on British Politics (London: Routledge, 1994), 26. 11 NA, MG 31, £46, Reid Papers, vol. 24 (file: Political Organization of the Agrarian Movement in the Canadian Prairies, 1933), 'Method of Organization for Political Purposes in the United Farmers of Alberta.' Handwritten notes on this document say that it was written 'by H.W. Wood' in 'about 1926.' Norman Smith, editor of the UFA, told Reid that 'the essential thing' about the farmers' party was not that farmers represent farmers, but that 'the industry of agriculture should be represented by persons responsible to and controlled by the UFA, the farmers' organization.' Smith to Reid, 21 September 1933. That explains the career of the UFA's most successful leader, a lawyer who never farmed. See Franklin Foster, John E. Brownlee: A Biography (Lloydminster, Sask.: Foster Learning Inc., 1996). 12 Globe and Mail, 22 August 1996, Ai9, 'Preston Manning: An Open Letter to the Federal Tories.' The best treatment of Reform and its roots, deep and shallow, is in Tom Flanagan, Waiting for the Wave: The Reform Party and Preston Manning (Toronto: Stoddart, 1995). 13 Saskatoon Star-Phoenix, 15 January 1997, B6. 14 Gordon Barnhart (Clerk of the Senate) participant in Comparing Legislatures (Ottawa: Canadian Study of Parliament Group, 1993), 5°15 For a review of how political parties as electoral organizations once functioned, see Gordon Stewart, 'Political Patronage under Macdonald and Laurier, 1878-1911,' American Review of Canadian Studies 10 (1980), 3-12; Reginald Whitaker, The Government Party: Organizing and Financing the Liberal Party of Canada, 1930-1958 (Toronto: University of Toronto Press, 1977); Norman Ward and David Smith, Jimmy Gardiner: Relentless Liberal (Toronto: University of Toronto Press, 1990), esp. Appendix, 'Memo re Organization.' 16 C.E.S. Franks, The "Problem" of Debate and Question Period,' in John C. Courtney, ed., The Canadian House of Commons: Essays in Honour of Norman Ward (Calgary: University of Calgary Press, 1985), ch. i. A decade later these problems had not disappeared. See Barnhart, Comparing Legislatures, 49. 17 Re Initiative and Referendum Act (1919), A.C. 944. The consequence of this finding, which prohibits referendums but by inference accepts consultative, nonbinding plebiscites is no less signficant than the reasons the Judicial Committee of the Privy Council gave for reaching it: there may be no 'abrogation of any power which the Crown possesses through a person who directly represents it.' Eight decades later that argument is being advanced in courts to check the implementation of legislative recall. 'Recall of Politicians "Bad Government."' Globe and Mail, 17 March 1998, A2.

Notes to pages 101-4

265

18 Peter H. Russell, Constitutional Odyssey: Can Canadians Be a Sovereign People? (Toronto: University of Toronto Press, 1992). 19 Brian Galligan, A Federal Republic: Australia's Constitutional System of Government (Cambridge: Cambridge University Press, 1995), 29- Another Australian political scientist has described 'Australia [as] a compound republic in the sense that its institutional design relies predominantly on the dispersal of power... The major exceptions are the existence of a parliamentary executive and a monarchical head of state.' Campbell Sharman, 'Australia as a Compound Republic/ Politics 25, no. i (May 1990), 3. A third academic, Andrew Fraser, trained in the law, disputes these claims but for reasons best discussed in the next chapter. 20 Galligan, A Federal Republic, 14 and 15. The Australian people/ says Andrew Fraser, 'seem fated to reign in a state of impotent splendour while others rule on their behalf.' 'False Hopes: Implied Rights and Popular Sovereignty/ Sydney Law Review 16 (1994), 216. 21 Not all authorities agree that the transformation of Australia from monarchy to republic will be as simple as the minimalist language might suggest. Stephen Gageler and Mark Leeming, 'An Australian Republic: Is a Referendum Enough?' and Geoffrey Lindell and Dennis Rose, 'A Response to Gageler and Leeming: 'An Australian Republic: Is a Referendum Enough?' Public Law Review 7, no. 3 (September 1996), 143-61. 22 Sheps, The American Revolution and the Transformation of English Republicanism/ 12. 23 Charles L. Black, Jr., 'Representation in Law and Equity/ in J. Roland Pennock and John W. Chapman, eds., Nomos X: Representation (New York: Atherton Press, 1968), 138. 24 DLAUC, 2 March 1853 (XI.III.1852-3), 1832. 25 DLAUC, 16 March 1853 (XI.III.1852-3), 2176. 26 Howard Scarrow, '"One Man-One Vote": Tracing Its Roots and Consequences/ in John C. Courtney, Peter MacKinnon, and David E. Smith, eds., Drawing Boundaries: Legislators, Courts and Electoral Values (Saskatoon: Fifth House Publishers, 1992), 184-5. 27 The story of Canada's federal constituencies is complex and, as presented, incomplete. A full account for the period up to 1967 is to be found in Norman Ward, 'A Century of Constituencies/ CPA 10, no. i (1967), 105-22. For the later period, see John C. Courtney, 'Parliament and Representation: The Unfinished Agenda of Electoral Redistributions/ C/PS 21, no. 4 (December 1988), 675-90. 28 DLAUC, 28 June 1850 (IX.II.i850), 892. 29 Courtney, 'Parliament and Representation/ 688.

266 Notes to pages 105-8 30 'Memorandum on Representation of the Maritime Provinces/ Canadian Sessional Papers, House of Commons, 1914, No. n8a, cited in Robert MacGregor Dawson, Constitutional Issues in Canada, 1900-1931 (London: Oxford University Press, 1933), 173-5 (emphasis in original). A case of special pleading perhaps, but not an unprecedented one. In 1868, the new federal government (Cartier speaking) defended the appointment of two ministers each from Nova Scotia and New Brunswick on the grounds that 'the count of heads must not always be permitted to outweigh every other consideration.' Commons Debates, 3 April 1868, 455. 31 DLAUC, i March 1853 (XI.III.i852-3), 1795. 32 Courtney, 'Parliament and Representation,' 686. 33 Debates of the Senate, 2 May 1995,1557. The transcript of the committee hearings on Bill C-69 twice refers, presumably incorrectly, to 'the relative parody of voting power.' Standing Senate Committee on Legal and Constitutional Affairs, 11 May 1995,1010-2 (Sharon Carstairs). 34 Canada, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Procedure and House Affairs, no. 33,25 November 1994, Appendix A. 35 Canada, Report of the Royal Commission on Aboriginal Peoples, vol. 2, Restructuring the Relationship: Part One (Ottawa: Ministry of Supply and Services Canada, 1996), 380-1. 36 Marquis of Lome to Sir Charles Tupper, 27 February 1885, quoted in E.M. Saunders, The Life and Letters of the Right Honourable Sir Charles Tupper, Bart, K.C.M.G., 2 vols. (Toronto: Cassell, 1916), 2:50. 37 Duff Spafford, '"Effective Representation": Reference Re Provincial Electoral Boundaries,' SBR 56 (1992), 197-208. All quotations in the paragraph are taken from this article. The Saskatchewan case is discussed in detail in Robert G. Richards and Thomson Irvine, 'Reference Re Provincial Electoral Boundaries: An Analysis/ and in Ronald E. Fritz, The Saskatchewan Electoral Boundaries Case and Its Implications/ both in Courtney, MacKinnon, and Smith, Drawing Boundaries, 48-89. 38 John C. Courtney and David E. Smith, 'Registering Voters: Canada in a Comparative Context/ in Michael Cassidy, ed., Democratic Rights and Electoral Reform in Canada (Research Study, vol. 10, Royal Commission on Electoral Reform and Party Financing (Toronto: Dundurn Press, 1991), 389-92. 39 Wright, Citizens and Subjects, 72. The classic Canadian statement of this election strategy is Alan C. Cairns, The Electoral System and the Party System in Canada, 1921-1965,' CJPS i no. i (March 1968), 55-80. 40 James (Viscount) Bryce, Canada: An Actual Democracy (Toronto: Macmillan Co. of Canada, 1921), 42.

Notes to pages 108-14

2

^7

41 Bond Head to colonial secretary, 22 March 1836, in S.F. Wise, ed. and intro., Sir Francis Bond Head: A Narrative with the Notes by William Lyon Mackenzie (Toronto: McClelland and Stewart, 1969), 44. 42 James Young, Public Men and Public Life in Canada, 2 vols. (Toronto: William Briggs, 1912), 2:51. 43 Samuel H. Beer, 'Federalism, Nationalism, and Democracy in America,' APSR 72 (March 1978), 12. 44 Harold A. Innis, 'Political Economy in the Modern State/ in Harold A. Innis, ed., Political Economy in the Modern State (Toronto: Ryerson Press, 1946), 132. 45 Commons Debates, 13 November 1867, 53-4. 46 Wright, Citizens and Subjects, 97. 47 W.L. Morton, The Extension of the Franchise in Canada: A Study in Democracy,' Canadian Historical Association Report (1943), 72-81. 48 Smith, The Invisible Crown, 13 and 191, n. 30. 49 Courtney, Theories Masquerading as Principles,' 141; Susan Magarey, 'Catherine Helen Spence/ Constitutional Centenary 2, no. 2 (May 1993), 8. 50 Paul Romney, 'From the Rule of Law to Responsible Government: Ontario Political Culture and the Origins of Canadian Statism/ Historical Papers (CHA), 1988,117-18. The association of the frontier and little republics is a theme found in S.D. Clark, Movements of Social Protest in Canada, 1640-1840 (Toronto: University of Toronto Press, 1959), 19, 23, 25. 51 NA, MG 31, £46 Reid Papers, vol. 24 (file: Political Organization of the Agrarian Movement in the Canadian Prairies, 1933),' 'UFA Notes on Documents Which Had to Be Returned to Norman Smith's Office in Calgary, Pamphlet A, 1921 Election.' 52 Thompson, The Making of the English Working Class, 87; The Memorial Address on Abraham Lincoln, Mechanics' Institute, St. John, N.B., 1865' (CIHM 23279). John Hirst, a member of the Republic Advisory Committee, has suggested that Australian nationalism had less to do with political democracy and the principle of egalitariarianism than it did with a 'social democracy/ where there was 'no bullshit.' 'History and the Republic/ Quadrant (September 1996), 41. 53 Daniel J. Elazar, 'Our Thoroughly Federal Constitution/ in Robert A. Goldwin and William A. Schambra, eds., How Federal is the Constitution? (Washington: American Enterprise Institute for Public Policy Research, 1987), 43. 54 Stefan Collini, The Idea of "Character" in Victorian Political Thought/ TRHS 35 (1985), 34. 55 Ibid., 43-4. 56 J.O. Miller, The Young Canadian Citizen: Studies in Ethics, Civics and Economics (Toronto: J.D. Dent and Sons, 1919), 128-9.

268 Notes to pages 114-15 57 The Leader (Regina), 6 September 1905, 'Hail Province of Saskatchewan/ reprinted with selections of other speeches for the occasion as Document 49 in David E. Smith, ed., Building a Province: A History of the Province of Saskatchewan in Documents (Saskatoon: Fifth House Publishers, 1992), 23-4 and 197. 58 Lionel Curtis, The Project of a Commonwealth: An Inquiry into the Nature of Citizenship in the British Empire, and into the Mutual Relations of the Several Communities Thereof, Part I (London: Macmillan and Co., 1915), 305 and 609. 59 Ronald A. Wells, The Voice of Empire: The Daily Mail and British Emigration to North America,' The Historian 43, no. 2 (February 1981), 252; The Daily Mail, i August 1905, 4; and William Norris, The Canadian Question (Montreal: Lovell Printing and Publishing Co., 1875), 43 (CIHM 23989). 60 Bond Head to colonial secretary, 'Memorandum on the Present Political State of the Canadas' [1836], quoted in Wise, Sir Francis Bond Head, 66 and 124. Half a century later George Taylor Denison and fellow correspondents expressed similar frustration with the 'indiscriminate eulogisms of the American Constitution' found in 'English literary papers.' Nor was it scarcely 'creditable' to them that James Bryce should not mention the defects of that document. NA, MG 29, £29, Papers of George Taylor Denison, vols. 3 and 4 (file: Correspondence 1888-89), W. Kirby to Denison, 28 January 1889, 1700-5. 61 Except for the decades on either side of the Rebellions, references to classicism in Canada are rare and, when they appear, usually negative. Compare, for instance, Garth R. Lambert, Dethroning Classics and Inventing English: Liberal Education and Culture in Nineteenth Century Ontario (Toronto: James Lorimer and Co., 1995) to James Warden's The Fettered Republic: The Anglo-American Commonwealth and the Traditions of Australian Political Thought,' AJPS 28 (Special Issue, 1993), 83-99. Warden claims that 'neoclassicism framed culture and covered the canvas of early Australia' and that 'Machiavellian republicanism thus entered Australian political culture within the Trojan horse of neo-classicism' (89 and 90). For a graphic, fictional reference, see David Malouf, Remembering Babylon (London: Vintage, 1994), ch. 18. The governor of Queensland saw himself, says the author, as 'at once the Hesiod of the place, its Solon, and its antipodean Pericles' (168). 62 See Reid Papers, vol. i (file: Canadian Politics: Notes on Interviews, 19301932: John W. Dafoe, 28 August 1930), in which Dafoe theorized that 'the revival of imperialism in Great Britain under Disraeli' sent Canadian nationalism 'underground.' Contrast this view with the following comment by Sir Anthony Mason, then chief justice of the High Court: 'With Federation, London rule gave way to Australian rule and thus ... a major cause ... of dissatisfaction with Britain disappeared and Australians saw themselves as citizens

Notes to pages 115-20 269

63

64 65 66

67

68 69

of a wider British Empire.' 'Sir Anthony Mason at Corowa/ Constitutional Centenary i, no. 2 (September 1992), 2. R.S. Jenkins, Canadian Civics (Toronto: Copp, Clark Co., 1910, B.C. edition), 166; C.A. Scarrow, W. Lewis, and G.N. Griffin, Our Democracy: A Textbook for Grades VII-VIII (Regina and Toronto: School Aids and Textbook Publishing Co. 194(4]), 23; and Miller, The Young Canadian Citizen, 128-9. Those outside of the tradition recognized its qualities: 'More social than intellectual, the training of the English institutions placed greater emphasis on character than intellect and produced citizens rather than intellectuals.' Quebec, Report of the Royal Commission oflncjuiry on Education in the Province of Quebec, Part Two: The Pedagogical Structures of the Educational System (Quebec, 1964), 5. Michael Atkinson, 'What Kind of Democracy Do Canadians Want?' C/PS 27, no. 4 (December 1994), 717-45. Howard Fast, ed., The Selected Work of Tom Paine and 'Citizen Tom Paine' (New York: Modern Library, 1945), 'Rights of Man/ 205. Unless otherwise noted, quotations in the next two paragraphs come from Chapter 3 of the Report of the Royal Commission on Aboriginal Peoples, vol. 2, Restructuring the Relationship, Part One, 327-77. Tim Schouls, 'Aboriginal Peoples and Electoral Reform in Canada: Differentiated Representation versus Voter Equality/ C/PS 29, no. 4 (December 1996), 735. For an appraisal of the AED concept, see Roger Gibbins, 'Electoral Reform and Canada's Aboriginal Population: An Assessment of Aboriginal Electoral Districts/ in Robert A. Milen, ed., Aboriginal Peoples and Electoral Reform in Canada, Research Study 9, Royal Commission on Electoral Reform and Party Financing 153-84 (Toronto: Dundurn Press, 1991). DLAL/C, 21 March 1849 (VIII.II.i849), 1482 (H. Boulton). Sandford Fleming, 'A Problem in Political Science/ TRSC, Section III (1889), 33-40.

5: Participation 1 M.N.S. Sellers, American Republicanism: Roman Ideology in the United States Constitution (New York: New York University Press, 1994), 177. The speaker was James Wilson, classical scholar, signer of the Declaration of Independence, delegate to the Philadelphia convention, and a leading Federalist defender of the 1787 constitution. 2 Angus Hawkins, '"Parliamentary Government" and Victorian Political Parties, c. 1830-0.1880,' EHR 104, no. 412 (July 1989), 642. 3 Daniel J. Elazar, 'Our Thoroughly Federal Constitution/ in Robert A. Gold-

270 Notes to pages 121-3

4 5 6

7

8

9 10 11

12

win and William A. Schambra, eds., How Federal Is the Constitution? (Washington: American Enterprise Institute for Public Policy Research, 1987), 61. Peter Murphy, 'Republican Jurisprudence and the Modern Constitution/ Thesis Eleven 31 (1992), 163. Frances Kahn Zemans, 'Legal Mobilization: The Neglected Role of the Law in the Political System/ APSR 77, no. 3 (September 1983), 691. Marie Peters, The "Monitor" on the Constitution, 1755-1765: New Light on the Ideological Origins of English Radicalism/ EHR 341 (October 1971), 714. On the contrary, the American colonists repudiated expressions of this view in the years leading to the Revolution. James Grey Pope, 'Republican Moments: The Role of Direct Popular Power in the American Constitutional Order/ UPLR 139, no. 2 (December 1990), 336-7. DLAUC, I (1841), 370-1 (Derbishire). The prohibition is found in s. 327, 'Signed Pledges by Candidates Prohibited/ Canada Elections Act, R.S.C. 1985, c. E-2. See David E. Smith, 'Party Government, Representation and National Integration in Canada/ in Peter Aucoin, ed., Party Government and Regional Representation in Canada (Toronto: University of Toronto Press in co-operation with the Royal Commission on the Economic Union and Development Prospects for Canada, 1985), 43-4, and Smith, The Liberal Vacuum in the West/ Policy Options, i, no. 3 (Sept./Oct. 1980), 42-3. Neil Nevitte, The Decline of Deference: Canadian Value Change in Cross-National Perspective (Peterborough: Broadview Press, 1996), 79. Seymour Martin Lipset, Continental Divide: The Values and Institutions of the United States and Canada (New York: Routledge, 1990), 7,8,212 and 45. Pierre Berton, Why We Act Like Canadians: A Personal Exploration of Our National Character (Toronto: McClelland and Stewart, 1982). All quotations in this paragraph are from Chapter i of this book. Not all Canadians shared this interpretation, however. See the advertisement placed in Le Devoir, 16 April 1982, 5, by GAPIQ (Groupe d' action pour la promotion de 1'independance du Quebec). It speaks of 'la nouvelle constitution imposee au Quebec par Ottawa, Londres et les provinces anglaises.' Guy La Forest has written that 'the ceremony and the picture [of the Queen signing the constitutional proclamation] mark the end of a certain Canadian dream in the hearts and minds of many Quebeckers.' Globe and Mail, 19 October 1995, A2i. Bond Head to colonial secretary, 17 April 1837, in S.F. Wise, ed. and intro., Sir Francis Bond Head: A Narrative with Notes by William Lyon Mackenzie (Toronto: McClelland and Stewart, 1969), 216. Another purveyor of Canada as 'less lawless and hav[ing] a greater sense of propriety than the United States'

Notes to pages 124-6

13

14

15

16 17

18

19 20

21

271

is George Grant, Lament for a Nation: The Defeat of Canadian Nationalism (Toronto: McClelland and Stewart, 1965), 70. The Globe, 19 June 1863, quoted in Bruce W. Hodgins, 'Attitudes toward Democracy during the Pre-Confederation Decade' (MA thesis, Queen's University, 1955), 235. Globe and Mail, i July 1995,07: 'We are becoming a country that doesn't want itself (letter to the editor); ibid., 4 July 1995, Ai3: 'Canadians need to be reimagined' ('Disney to the Rescue/ Michael Valpy). Disney rather than Sergeant Preston: the 'learning circuit' is the same. See Raphael Samuel, Theatres of Memory, vol. i, Past and Present in Contemporary Culture (London: Verso, 1994), 8. One reason why 'the Mounties' retain a popular literary image is that they do not appear elsewhere. In the school curriculum 'conflict does not exist;' therefore there is no place for the police. Kenneth W. Osborne, Monographs in Education, vol. 4, '"Hard-working, Temperate and Peaceable" - The Portrayal of Workers in Canadian History Textbooks ([Winnipeg]: University of Manitoba, 1980), 59. R.C. Macleod, The RCMP and the Evolution of Provincial Policing,' in R.C. Macleod and David Schneiderman, eds., Police Powers in Canada: The Evolution and Practice of Authority (Toronto: University of Toronto Press, 1994), 45. Ibid., 49; see also David E. Smith, The Police and Political Science in Canada,' in ibid., 184-208. Macleod, The RCMP and the Evolution of Provincial Policing,' 49; see also John C. Clifford, 'Making Administration Work: An Examination of the Juxtaposition of Administrative and Legal Ordering,' paper presented at the annual meeting of the Canadian Political Science Association, Kingston, Ontario, June 1991. R.L. Jackson, Canadian Police Labour Relations in the '8os: New Environmental Concerns, Reprint Series no. 66 (Kingston: Industrial Relations Centre, Queen's University, 1986), 7. Ibid., 6-7. Brian Galligan, A Federal Republic: Australia's Constitutional System of Government (Melbourne: Cambridge University Press, 1995), viii. In his review of the book, Sir Anthony Mason, former chief justice of the High Court, observed that 'Galligan's discussion is a valuable corrective to the superficial notion that the three concepts [majoritarian democracy, responsible government, and parliamentary sovereignty] are the dominant constitutional principles.' AJPS 31, no. 2 July 1996), 257. Louis Hartz, The Founding of New Societies: Studies in the History of the United States, Latin America, Canada, and Australia (New York: Harcourt, Brace and World, 1964), 85. See also pp. 86-91. Britons overseas, said John Ruskin in

272 Notes to pages 126-9 1870, were no more 'disfranchised from their native land, than the sailors of her fleets.' Quoted in Edward W. Said, Culture and Imperialism (New York: Vintage Books, 1994), 103. 22 DLAUC, 30 January 1845 (IV.I.i844-5), 1237. 23 William Norris Ingersoll, 'Canadian Nationality and Its Opponents,' Canadian Monthly 8 (September 1875), 237-43. A.R.M. Lower, 'The Origins of Democracy in Canada/ Canadian Historical Association Report (1930), 65-70. Donald Creighton disagreed: 'Presidential Address/ Canadian Historical Association Report (1947), 8-10. For many Quebecois, the forty-ninth parallel was the frontier: 'De 1870 a 1890 ... un tiers de la population canadiennefranqaise emigre aux Etats-Unis.' Arthur Laurendeau, 'La Situation est-elle acceptable?' L' Action Nationale 9 (1937), 7424 William Bennett Munro, American Influences on Canadian Government (Toronto: Macmillan of Canada, 1929), 91. 25 Canadian political culture proved uncongenial to the democratic sentiment that informs the party primary. For a rare example of its use, see Harold A. Innis, The Diary of Alexander James McPhail (Toronto: University of Toronto Press, 1940), Appendix i: 'Last Mountain Federal Constituency, Instructions re: Primaries/ 59-61. In national politics the leadership convention was the invention not of rank-and-file members but of their leaders. Its purpose was to strengthen party unity. 26 John A. Fraser, The House of Commons at Work (Montreal: Les Editions de la Cheneliere inc., 1993), 21. 27 There is a large literature on Canada's electoral regime. A recent source, with an extensive list of references, is the Final Report, Royal Commission on Electoral Reform and Party Financing (Ottawa: Minister of Supply and Services Canada, 1991), vol. i. For a sympathetic but critical analysis of the topic of parties and electoral reform, see Jane Jenson, The Costs of Political Elitism/ in C.E.S. Franks, J.E. Hodgetts, O.P. Dwivedi, Doug Williams, and V. Seymour Williams, eds., Canada's Century: Governance in a Maturing Society (Montreal: McGill-Queen's University Press, 1995), 217-37. 28 See National Citizens' Coalition half-page advertisement 'Before You Vote ... Read This/ Saskatoon Star-Phoenix, 20 October 1993, A5. 29 Globe and Mail, 6 June 1996, Ai/A6. See also Herman Bakvis and Jennifer Smith, Third-Party Advertising and Electoral Democracy: The Political Theory of the Alberta Court of Appeal in Sommerville v. Canada (Attorney General) [1996],' Canadian Public Policy 23, no. 2 (1997), 164-78. 30 Report of the Chief Electoral Officer of Canada (Ottawa: Supply and Services, 1989), 29. In an essay entitled 'Strict Partiality/ Andre Laurendeau tells the story of how the No side in the 1942 plebiscite on conscription was banished

Notes to pages 129-34

2

73

from Radio-Canada. Philip Stratford, trans., Andre Laurendeau: Witness for Quebec (Toronto: Macmillan of Canada, 1973), 80-3. As of 1998 the Supreme Court of Canada had yet to rule upon the disputed sections of the Canada Elections Act. However, in 1998 it did state that the objective of similar limitations on independent expenditures in Quebec's referendum legislation was 'laudable.' Libman et al. v. Attorney General of Quebec, 151 DLR (4th), 385-429 at 414. 31 Jane Jenson, The Costs of Elitism/ 217. 32 'I associated myself with a division of the "Sons of Temperance," which held weekly meetings for propagating temperance principles ... The business ... was conducted according to well-defined rules of procedure and debate, which gave it an air of dignity and self-restraint not unlike parliament in miniature. The ceremony of initiation, the reports of the committees, the prescribed duties of the different officers, the deference to the presiding officer ... were all instructive.' George W. Ross, Getting into Parliament and After (Toronto: W. Briggs, 1913), 7. 33 DLAUC, 3 April 1856 (XIII.III.i856), 1091 (Gamble) and 22 May 1850 (IX.I.1850), 142 (Gugy). 34 Minutes of Proceedings and Evidence, Standing Committee on Privileges and Elections, 24 October 1985,16:20. 35 John C. Courtney, 'Recognition of Canadian Political Parties in Parliament and in Law,' CJPS 11, no. i (March 1978), 33-60. 36 David Kilgour, 'Parliament, Parties and Regionalism' (Ottawa: Canadian Study of Parliament Group, 1991), 8. 37 Sam Patterson (Ohio State University), participant in seminar 'Comparing Legislatures' (Ottawa: Canadian Study of Parliament Group, 1993), 16-17. 38 Globe and Mail, 10 March 1997, Ai/A6, 'Liberals May Duck Selection Process.' 39 Kenneth McNaught, 'Political Trials and the Canadian Political Tradition/ UTL/24(i974),i5in. 40 Woodrow Wilson, Congressional Government (Boston: Houghton, Mifflin and Co., 1885), 298, 310; American Political Science Association, Toward a More Responsible Two-Party System: A Report (New York: Rinehart and Co., 1950), passim. 41 K.C. Wheare, 'Walter Bagehot' (Lectures on a Master Mind), Proceedings of the British Academy 60 (1974), 195. 42 Review by Gamaliad Bradford, North American Review 242 (January 1874), 12. Said notes Bagehot's reference to 'nation-making.' Culture and Imperialism, 83. 43 Anti-federalist author, writing under the Roman pseudonym, Agrippa

274 Notes to pages 134-7 (1788), quoted in Peter S. Onuf, The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775-1787 (Philadelphia: University of Pennsylvania Press, 1983), 192. 44 DLAUC, 27 August 1852 (XI.I.i852-3), 156. 45 Alexander Dobrowolsky and Jane Jenson, 'Reforming the Parties: Prescriptions for Democracy/ in Susan D. Phillips, ed., How Ottawa Spends, 19931994: A More Democratic Canada ...? (Ottawa: Carleton University Press, 1993), 46. 46 Ross McKibbin, 'Why Was There No Marxism in Great Britain?' EHR 99, no. 391 (April 1984), 315. 47 C.A. Scarrow and G.N. Griffin, Citizenship and Character Education (A Manual for Grades land II) (Regina: School Aids Publishing Co., 1933), and DJ. Goggin, ed., The Canadian Citizen (Toronto: Macmillan Co., 1923), v. 48 Citizens' Forum on Canada's Future: Report to the People of Canada (Ottawa: Supply and Services, 1991), 4. 49 For an example, see J. A. Mangan, The Games Ethic and Imperialism: Aspects of the Diffusion of an Ideal (Harmondsworth: Viking, 1986), cited in Said, Culture and Imperialism, 138. 50 W.A. Morton, The Canadian Identity (Toronto: University of Toronto Press, 1961), 85. 51 DLAUC, 27 May 1850 (IX.I.i85o), 224. Writing about the Quebec referendum of 1980, Kenneth McNaught drew a contrast with American atittudes: 'A unilateral secession referendum, at least since 1865, would be inconceivable in the U.S.A. Perhaps, in the eyes of some Basques, Corsicans and Sardinians, Canada may even appear more European than the Europeans.' Kenneth McNaught, 'Canada's European Ambiance,' The Round Table 310 (1989), 149. 52 N.E.S. Griffiths, The Splendid Vision: Centennial History of the National Council of Women of Canada, 1893-1993 (Ottawa: Carleton University Press, 1993), 189. 53 See Canada, House of Commons, Equality Now! Report of the Special Committee on Visible Minorities in Canadian Society (March 1984). 54 Jane Jenson, 'Commissioning Ideas: Representation and Royal Commissions/ in Susan D. Phillips, ed., How Ottawa Spends, 1994-95: Making Change (Ottawa: Carleton University Press, 1994), 45. 55 Monique Begin, 'Debates and Silences - Reflections of a Politician/ Daedalus 117, no. 4 (Fall 1988), 345-8, passim. 56 McKibbin, 'Why Was There No Marxism in Great Britain?' 320. For the situation as it once was, see David Warren Fransen, '"Unscrewing the Unscrutable": The Rowell-Sirois Commission, the Ottawa Bureaucracy, and Public Finance Reform, 1935-1941' (PhD thesis, University of Toronto, 1984).

Notes to pages 137-41 275 57 Liora Salter, The Two Contradictions in Public Inquiries/ in A. Paul Pross, Innis Christie, and John A. Yogis, eds., Commissions of Inquiry (Scarborough, Ont: Cars well, 1990), 179. 58 Globe and Mail, i April 1996, A3, 'Ontario Scraps Intervenor Funding.' 59 Susan D. Phillips, 'How Ottawa Blends: Shifting Government Relationships with Interest Groups/ in Frances Abele, ed., How Ottawa Spends: The Politics of Fragmentation, 1991-92 (Ottawa: Carleton University Press, 1991), 204. 60 Quoted in J. Patrick Boyer, Lawmaking by the People: Referendums and Plebiscites in Canada (Toronto: Butterworths, 1982), 36. This book is the most thorough account available on the subject. The Manitoba reference is In Re Initiative and Referendum Act (1919), A.C. 944. 61 See, as examples of referendum legislation in Alberta and Saskatchewan, Constitutional Referendum Act, S.A. 1992, c. 22.25 an d Referendum and Plebiscite Act, S.S. 1991, c. R.S.oi. 62 Consensus Saskatchewan, Leading the Way: A Blueprint for Saskatchewan: Final Report of Consensus Saskatchewan (Regina: Consensus Saskatchewan, September 1990). The government's response appeared in New Realities and the Public Process (November 1990). 63 National referendums are discussed in Boyer, Lawmaking by the People, ch. 5, and in Ronald L. Watts and Douglas M. Brown, eds., Canada: The State of the Federation, 1993 (Kingston: Institute of Intergovernmental Relations, 1993), Part II, 'Constitutional Debate and the Referendum.' 64 Janet Ajzenstat, 'Constitution Making and the Myth of the People/ in Curtis Cook, ed., Constitutional Predicament: Canada after the Referendum of 1992 (Montreal: McGill-Queen's University Press, 1994), 119. 65 Preston Manning, The New Canada (Toronto: Macmillan Canada, 1992), quoted in Tom Flanagan, Waiting for the Wave (Toronto: Stoddart, 1995), 22. 66 Globe and Mail, 14 December 1995, A4. 'Manning Set to Have PM Removed.' 67 Citizens' Forum on Canada's Future, 135. 68 Saskatoon Star-Phoenix, 4 June 1996, Dg. 'Reform Proposals Lets [sic] Voters Override Charter of Rights.' 69 Andre Blais and Elisabeth Gidengil, Making Representative Democracy Work: The Views of Canadians, vol. 17, Research Studies, Royal Commission on Electoral Reform and Party Financing (Toronto: Dundurn Press, 1991), 5. 70 Quoted in George Brown, The Grit Party and the Great Reform Convention of 1859,' CHR 16, no. 3 (September 1935), 254. 71 Two anatomies of the Reform Party are by David Laycock, 'Reforming Canadian Democracy? Institutions and Ideologies in the Reform Party Project' and Richard Sigurdson, 'Preston Manning and the Politics of Postmodernism in Canada/ C/PS 27, no. 2 (June 1994), 213-47 and 249-76. An exchange on

276 Notes to pages 141-2

72 73

74

75

76

77

the appropriateness of the adjective 'alien' took place in the British Columbia legislature during debate of the recall and referendum bill in 1992: 'When more than 80 percent are in favour of reforms [as determined in an earlier plebiscite], how can they be alien?' asked one supporter of the government which had sponsored the bill. Province of British Columbia, Debates of the Legislative Assembly, 6 July 1994,12868 (U. Dosanjh). The story of how British Columbia had come so far in the area of direct legislation is told by Norman Ruff, 'Institutionalizing Populism in British Columbia/ CPR 16, no. 4 (Winter 1993-4), 24-32. For a popular appraisal of populist politics, see Paul Sullivan, 'Leaders "R" Us,' Western Living (Vancouver ed.), 23, no. 8 (October 1993), 34fO. Blais and Gidengil, Making Representative Democracy Work, 18. Philip Hunton, Treatise of monarchic, quoted in Z.S. Fink, The Classical Republicans: An Essay in the Recovery of a Pattern of Thought in Seventeenth-Century • England, 2nd ed. (Evanston: Northwestern University Press, 1962), 25. The same phrase, only in the indicative mood, was commonly heard from European visitors to the United States: The lack of bureaucracy helps to explain the bewilderment of many foreign observers at the absence in America of anything that could be understood as the state, at least in European terms. "There is no government here," said the Frenchman Michel Chevalier.' Peter J. Parish, 'A Talent for Survival: American Federalism in the Era of the Civil War,' Historical Research 62, no. 148 (June 1989), 182. Canada West Foundation, Re-Inventing Parliament... A Conference on Parliamentary Reform, 25 and 26 February 1994 (Calgary: Canada West Foundation, 1994), 2-3. Canadian Study of Parliament Group, Parliaments in the Eye of the Information Storm: Citizen Consultation and Public Service Accountability (November 1995), esp. 19-21. James Gray Pope, 'Republican Moments: The Role of Direct Power in the American Constitutional Order,' UPLR 139, no. 2 (December 1990), 287-368. This long article is essential reading for any discussion of republican theory. The five 'defining features' of 'Republican Moments' are as follows: (i) large numbers of Americans engage in serious political discourse; (2) their arguments are couched primarily in moral rather than pecuniary terms and appeal to the common good rather than private interest; (3) the subjects of debate include fundamental aspects of the social, political, or economic order... (4) representative politics are overshadowed by extra-institutional forms of citizen participation such as popular assemblies, militant protest, and civil disobedience; and (5) social movements and voluntary associations

Notes to pages 143-5 277

78 79 80

81

displace interest groups and political parties as the leading forms of political organization' (311). Charles R. Epp, 'Do Bills of Rights Matter? The Canadian Charter of Rights and Freedoms/ APSR 90, no. 4 (December 1996), 765. For a discussion of the relationship between the political executive and the Court Challenges Program, see Smith, The Invisible Crown, 149-51. Farmers Sun, 24 November 1932, 4. In this speech on The State and the Individual,' Massey talked about the 'abuse' of money in elections. Here is an early (if not the first) reference to the Liberals' panacea: 'reducing the amount of money which it is necessary for parties to find for their legitimate purposes.' There were two ways of reducing campaign expenses: compulsory voting and 'the assumption by the state of certain election costs such as those of broadcasting.' Its very name disqualified the first option from Liberal consideration. A straw in the wind is the Commission for Environmental Cooperation (CEC), also known as the NAFTA Commission for Environmental Cooperation. The CEC 'is the only international organization with a citizen petition system where individuals and organizations are able to request an investigation of an alleged non-enforcement of environmental laws.' Marcos Silva, The Commission for Environmental Cooperation's Information Dissemination and Public Outreach Programs/ Government Information in Canada 3, no. 2 (Fall 1996), 3. The author discusses the effect of changes in communication technology on political behaviour.

6: Federalism 1 Vincent Ostrom, The Political Theory of a Compound Republic: Designing the American Experiment, 2nd ed. (Lincoln, Neb.: University of Nebraska, 1987)2 L.F.S. Upton, The Idea of Confederation, 1754-1858,' in W.L. Morton, ed., The Shield of Archilles: Aspects of Canada in the Victorian Age (Toronto: McClelland and Stewart, 1968), 185. 3 J.G.A. Pocock, The History of British Political Thought: The Creation of a Centre/ Journal of British Studies 24, no. 3 (July 1985), 307. 4 Brian Galligan, A Federal Republic: Australia's Constitutional System of Government (Melbourne: Cambridge University Press, 1945), 14. 5 Campbell Sharman, 'Australia as a Compound Republic/ Politics 25, no. i (May 1990), 3. 6 J.G. Bourinot, 'Canadian Studies in Comparative Perspective: Parliamentary Compared with Congressional Government/ TRSC (1893), Section II, 82.

278 Notes to pages 146-50 7 Jack N. Rakove, The Beginnings of National Politics: An Interpretative History of the Continental Congress (New York: Knopf, 1979), 393. 8 The story of the Western lands controversy and its resolution is told by Peter S. Onuf, The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775-1787 (Philadelphia: University of Pennsylvania Press, 1983). All quotations in this paragraph, unless otherwise noted, are from Onuf 24, 32, 44. See also Leonard D. White, The Federalists: A Study in Administrative History (New York: Macmillan, 1956): The government of the Confederation had steadily run down until its movements had almost ceased' (i). 9 Daniel J. Elazar, 'Our Thoroughly Federal Constitution,' in Robert A. Goldwin and William A. Schambra, eds., How Federal Is the Constitution? (Washington: American Enterprise Institute for Public Policy Research, 1987), 43, and Onuf, The Origins of the Federal Republic, xviii. 10 'Minute 15 September 1841: C.0.137/256, Stephen to Howick, 11 January 1836: Grey MSS (Durham)/ quoted in A.F. Madden, '"Not for Export": The Westminster Model of Government and British Colonial Practice/ JICH 8, no. i (October 1979), 28. 11 Montreal Gazette, 7 December 1867, report of debates of 6 December, quoted in Lewis Herbert Thomas, The Struggle for Responsible Government in the North-West Territories, 1870-9 (Toronto: University of Toronto Press, 1956), 8. 12 Onuf, The Origins of the Federal Republic, xv. Few Canadians spoke of federation in this way. One of those who did was Etienne Parent, see Louis Nourry, 'L'Idee de federation chez Etienne Parent, 1831-1852,' RHAF 26, no. 4 (mars 1973): 'En multipliant les centres de pouvoir et de gouvernement ils ont cree un grand nombre d'etats populeux, florissants et unis entre eux' (548). 13 Andrew Fraser, 'In Defence of Republicanism: A Reply to George Williams/ Federal Law Review 23 no. 2 (1995), 370. 14 P.B. Waite, ed., The Confederation Debates in the Province of Canada, 1865 (Toronto: McClelland and Stewart, 1963), 44. 15 Elazar, 'Our Thoroughly Federal Constitution/ 56, and Martin Diamond, 'Democracy and The Federalist: A Reconsideration of the Framers' Intent/ APSR 53, no. i (March 1959), 64ff. quoted in ibid., 38. 16 For example, listen to Andre Laurendeau in 1949: 'It is an abuse of language to hear the centralizers called federalists/ in Philip Stratford, trans., Andre Laurendeau: Witness for Quebec (Toronto: Macmillan of Canada, 1973), 132, or Preston Manning and Stephen Harper in 1995: '[I]t is centralists, not federalists who run the country.' Globe and Mail, 3 October 1995, A2i, 'Where Will a No Vote Lead Canadians?'

Notes to pages 150-3 279 17 Peter J. Parish, 'A Talent for Survival: American Federalism in the Era of the Civil War/ Historical Research 62, no. 148 (June 1989), 187. 18 Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution/ Yale Law Journal 93 (1984), 1042; see also io63f for discussion of Article V of the Constitution and the Civil War Amendments. 19 William H. Riker, The Development of American Federalism (Boston: Kluwer Academic Publishers, 1987), 155 n.i. 20 Paul J. Mishkin, 'Autonomy of Decentralized Units in the United States of America/ in International Association of Constitutional Law, Federalism and Decentralization: Constitutional Problems of Territorial Decentralization in Federal and Centralized States (Fribourg: Editions universitaires, 1987), 243. Unless otherwise noted, all quotations in this paragraph are from Mishkin. Papineau, for one, understood the complexity of the United States Senate's composition: 'Le senat federatif american est constitue dans un but d'assurer la puissance souveraine et absolue de chaque etat, sans que son voisin puisse se plaindre, se venger de ce que sa legislation particuliere locale differe de la sienne/ DLAUC, 24 January 1848 (VIII.I.1849), 218-19. 21 Riker, The Development of American Federalism, 138. 22 Ibid., 139. 23 Samuel H. Beer, 'Federalism, Nationalism, and Democracy in America,' APSR 72, no. i (March 1978), 14. 24 National Archives and Records Service, Washington: Design of the Federal City (Washington: Acropolis Books Ltd., 1981), 7. 25 Ibid., 13. 26 Carolyn A. Young, The Glory of Ottawa: Canada's First Parliament Buildings (Montreal: McGill-Queen's University Press, 1995), 6. The rise of Napoleon Bonaparte, and the transformation of the new French Republic into an Empire ... affected the kind of associations read into Roman forms ... Roman was steadily superseded as the national American style by Greek.' Alan Gowans, The Canadian National Style,' in Morton, ed., The Shield of Achilles, 212. In turn, that preference made Greek allusions unacceptable to Canadians. Glenn Me Arthur and Annie Szamosi, William Thomas: Architect, 27991860 (Toronto: Archives of Canadian Art, 1996), 47 and 58. See also p. 94 for a discussion of the design for the present Brock Monument, Queenston. 27 Bernard S. Cohen, 'Anthropology and History in the 19803,' Journal of Interdisciplinary History 12, no. 2 (Autumn, 1981), 250. 28 DLAUC, 2 November 1843 (III (1843)), 563 (HJ. Boulton). 29 Ibid., 573. 30 Ibid., 3 November 1843, 615.

280 Notes to pages 154-5 31 Steven Lukes, 'Political Ritual and Social Integration/ Sociology, 9 (1975), 299-300. 32 'Bystander/ 'Colonel Gray on Confederation/ Canadian Monthly 2 (August 1872), 178. 'Bystander' was Goldwin Smith. 33 The author was William Hutton, 'Secretary Board Statistics Quebec/ the occasion Canada's participation in the Paris Exhibition, 1855. 'Canada at the Universal Exhibition/ Appendix 46 (1856) vol. 14, Journals of the Legislative Assembly of Province of Canada, n.p. 34 Margaret Archibald, By Federal Design: The Chief Architect's Branch of the Department of Public Works, 1881-1914 (Ottawa: National Historic Parks and Sites Branch, Parks Canada, Environment Canada, 1983), 4. For a short treatment of an influential chief architect of Australia, see David Rowe, 'Building Federation, an Architectural Perspective: The Work of John Smith Murdock/ Constitutional Centenary 3, no. 4 (December 1994), 4-5. Murdock designed the Provisional Parliament House (1927), whose 'logical planning, unpretentious scale and austere Classicism echoed both imperialist ideals of the Westminster Parliamentary system and nationalism in the Colonial Revival overtones' (5). 35 T. Phillips Thompson, The Future Government of Canada: being arguments in favor of a British American independent republic (St Catharines: H.F. Leavenworth's 'Herald' Power Press, 1864), 21. One of the few extant tracts proposing a republican form of government for Canada, the object of its desire was to 'Anglicize' the French Canadians. The majoritarianism implicit in its purpose reveals little affinity for American republican theory. Absent the assimilationist goal, British authorities shared the objective of a union that was 'a complete fusion, not a federation/ Edward Cardwell (colonial secretary) to Arthur Gordon (lieutenant-governor, New Brunswick), 12 November 1864 (CIHM 37026), quoted in Ged Martin, Britain and the Origins of Canadian Confederation, 1837-67 (Vancouver: University of British Columbia Press, 1995), 15336 Alan Cairns, The Constitutional World We Have Lost/ in C.E.S. Franks, J.E. Hodgetts, O.P. Dwivedi, Doug Williams, and V. Seymour Williams, eds., Canada's Century: Governance in a Maturing Society (Montreal: McGill-Queen's University Press, 1995), 46. 37 Ivo Duchacek once contrasted 'the absence of a truly federalist tradition among the Canadian founding fathers on both sides of the Atlantic' with the 'astonishing' fact that Canadian federalism ... has so well thrived and developed in the continental expanse of Canada/ He suggested that a possible answer lay in 'the lateral, subliminal influence of U.S. federal practices/ 'Bicommunalism: Afloat on Meech Lake/ paper presented at Institute of

Notes to pages 155-7

38

39

40

41

42 43

44 45 46 47 48 49

2

&i

Intergovernmental Relations, Queen's University, Kingston, Ontario, 26-7 June 1987 (emphasize in original). Very subliminal, as a reading of Garth Stevenson would indicate. Ex Uno Plures: Federal-Provincial Relations in Canada, 1867-1896 (Montreal: McGill-Queen's University Press, 1993). Goldwin Smith, The Political Destiny of Canada/ Canadian Monthly 11 (June 1877), 599. He was not alone: 'What are the special functions of a Federal Government? - Peace and war, and the management of foreign relations.' Colonel Gray, quoted in Goldwin Smith, 'Colonel Gray on Confederation/ Canada Monthly 2 (Aug. 1872), 175. David E. Smith, 'Party Government Representation and National Integration in Canada' in Peter Aucoin, ed., Party Government and Regional Representation in Canada (Royal Commission on the Economic Union and Development Prospects for Canada, Toronto: University of Toronto Press, 1985), 4. John M. Murrin, The Great Inversion, or Court versus Country: A Comparison of the Revolution Settlements in England (1688-1721) and America (1776-1816),' in J.G.A. Pocock, ed., Three British Revolutions, 1641,1688,1776 (Princeton: Princeton University Press, 1980), quoted in Jack Rakove, The Legacy of the Articles of Confederation/ Publius 12, no. 4 (Fall 1982), 63. Thomas Paine, 'Public Good: Being an Examination into the Claim of Virginia to the Vacant Western Territory; and of the Right of the United States to the Same ...' (December 1780), in Philip S. Foner, The Complete Writings of Thomas Paine, 2 vols. (New York: The Citadel Press, 1945), i: 324. Donald S. Lutz, The Purposes of American State Constitutions/ Publius 12 (Winter 1982), 39. On the grounds that it would unbalance Confederation, Sir Wilfrid Laurier dismissed the suggestion that one rather than two prairie provinces should enter the union in 1905. House of Commons Debates, 21 February 1905,1422. The American attitude to boundaries is captured in Samuel Beer's comment: Tt must make you wonder whether there could have been a United States if the rectangle had not been invented.' 'Federalism, Nationalism and Democracy/ 16. Smith, The Political Destiny of Canada/ 598. W.L. Morton, 'British North America and a Continent in Dissolution, 186171,' History 47 (1962), 140. Howe to Russell, 19 January 1865, quoted in Hon. Judge P.J.T.O'Hearn, 'Nova Scotia and Constitutional Amendment/ McGLJ 12 (1966-67), 433. Commons Debates, 3 April 1868, 450. Stevenson, Ex Uno Plures, 107. Liquidators of the Maritime Bank v. Receiver General of New Brunswick, [1892] A.C. 437-

282 Notes to pages 157-60 50 Norman Ward, The Canadian House of Commons: Representation, 2nd ed. (Toronto: University of Toronto Press, 1963), 65. 51 Commons Debates, 28 November 1867 (Alexander Mackenzie). 52 Proceedings, Conference of Federal and Provincial Governments, 4-7 December 1950 (Ottawa: Queen's Printer, 1951), 57-8. In lieu of development, the federal government was expected to enter the economic breach. Mitch Hepburn, the premier of Ontario, once captured the dilemma this expectation presented: 'One could not find a more striking illustration of the impracticability of compensating provinces for the disabilities they claim (even the real ones) as a result of federal policy. The Canadian Government expended hundreds of millions ... in opening the prairies to markets; when Nova Scotia's sons (among others) went to seize opportunity - Mr. Rodgers presented a Bill for Nova Scotia's stagnation, and the Premier of Manitoba presented another one for the social services of an expanding population.' Royal Commission on Dominion-Provincial Economic Relations, Report of Hearings, 2 May 1938, 7434. 53 Canada, Report of the Royal Commission on Aboriginal Peoples, vol. 2, Restructuring the Relationship: Part One (Ottawa: Supply and Services Canada, 1996), 297-9. 54 Kenneth McNaught, 'Canada's European Ambiance, The Round Table 310 (1989), 149. 55 James Tully, 'Diversity's Gambit Declined,' in Curtis Cook, ed., Constitutional Predicament: Canada after the Referendum 0/1992 (Montreal: McGill-Queen's University Press, 1994), 162-3 (internal notes omitted). The federation as an accretion of strata is another metaphor: '[A]n inclusionary vision of Canada ... must embrace the complex reality of Canada, which has many layers and dimensions: two founding peoples; ten provinces and two territories; five regions; an anglophone majority in Canada that is a minority in Quebec; a francophone majority in Quebec that is a minority in all provinces; and an increasingly diverse mosaic of people from all continents.' John Halstead, 'A Vision for Canada/ Canada Opinion 4, no. 2 (April 1996), 2. 56 J.G.A. Pocock, 'States, Republics and Empires: The American Founding in Early Modern Perspective,' in Terence Ball and J.G.A. Pocock, eds., Conceptual Change and the Constitution (Lawrence: University Press of Kansas, 1988), 71-2. 57 Commons Debates, 3 May 1869,163 (Ferguson). For an iconoclast's view of Canada Day, 1995, see Daniel Latouche, Travelling through a Strange Land,' Globe and Mail, 7 July 1995, Ai3. 58 NA, MG 30, 045, Dafoe Papers (M75), Kennedy to Dafoe, 5 November 1928, 'Private and Confidential.'

Notes to pages 160-2 283 59 Canada, Precis of Discussions, Dominion-Provincial Conference, 3-10 November 1927 (Ottawa: King's Printer, 1928), 9. 60 Daniel Elazar, 'Principles and Traditions Underlying State Constitutions/ Publius 12 (Winter 1982), 16-17. In this comment Elazar does not dissent from the judgment of the United States Supreme Court in Reynolds v. Sims 377 U.S. (1963). There the court dismissed as 'inapposite' the 'federal analogy' as applied to states. 'Unique historical circumstances' distinguish the states from the federal republic. As a result, 'both houses of a state legislature [had] to be apportioned on a population basis' (574-6). There are few anthropomorphic images in the literature on Canadian federalism. One of the most graphic is in D.J. Goggin, ed., The Canadian Citizen (Toronto: Macmillan Co., 1923): 'It should be kept in mind that the power of the Provinces and the Dominion and the control of all affairs come from the people ... The people give their power into two hands. The Dominion Government is the right hand and the Provincial government is the left hand' (28). 61 Tt may not be impossible to be a good Canadian and a good Quebecois, Albertan, British Columbian, or Ontarian at the same time, but the data presented here would tend to suggest that in some provinces these loyalties are in conflict with one another more often than they are mutually reinforcing.' Harold D. Clarke, Lawrence LeDuc, Jane Jenson, and Jon H. Pammett, Political Choice in Canada (Toronto: McGraw-Hill Ryerson Ltd., 1979), 72. 62 Ibid., 28-9. 63 Task Force on Canadian Unity, A Future Together: Observations and Recommendations (Ottawa: Supply and Services Canada, 1979), 102 (emphasis added). According to its director of research, the Task Force fashioned a view of Canada and Confederation that comfortably acknowledged the communitarian foundation of much of what was most valuable and most strongly cherished in our national existence.' David R. Cameron, 'Not Spicer and Not the B and B: Reflections of an Insider on the Workings of the Pepin-Robarts Task Force on Canadian Unity,' 7/CS 7-8 (Spring-Fall 1993), 344. 64 J.E. Hodgetts, 'Regional Interests and Policy in a Federal System/ CJEPS 32, no. i (February 1966), 3-14. The Task Force on Canadian Unity said that 'politically, regions were best understood as provinces.' Cameron, 'Not Spicer and Not the B and B/ 344. 65 DLAUC, 20 March 1848 (VII. 1848), 524 (L.T. Drummond). 66 NA, Forsey Papers (file: Disallowance of Provincial Acts (2), 1945,1948), note on 'Saskatchewan Brief.' 67 This account is based on Ged Martin, Britain and the Origins of Canadian Confederation, 1837-67, ch. 2, 'Canadian Confederation and Historical Explana-

284 Notes to pages 163-8

68

69 70

71 72 73

74 75

76

77 78

tion.' For a useful summary of specific constitutional changes in United Canada between 1840 and 1854, when the legislature came into full possession of its constitution, see Edward Porritt, Evolution of the Dominion of Canada: Its Government and Politics (New York: World Book Co., 1920), 148-62. Unless otherwise noted, all quotations in the next three paragraphs are from Joseph Pope, ed., Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (Toronto: Carswell Co. Ltd., 1895), 75~7- George Brown's views on the prominence of the provinces in the new federation changed substantially in the decade preceding 1864. For an explanation, see J.M.S. Careless, Brown of the Globe, vol. 2, Statesman of Confederation, 1860-1880 (Toronto: Macmillan Co. of Canada, 1963), 167-8. Canada, Dominion, Provincial and Interprovincial Conferences from 1887 to 1926 (Ottawa: King's Printer, 1951), 22-3. Head to Lord Stanley, 28 April 1858, quoted in Bruce A. Knox, The British Government, Sir Edmund Head, and the British North American Confederation, 1858,' JICH 4, no. 2 (January 1976), 214. See, for instance, Martin Landau, 'Federalism, Redundancy and System Reliability,' Publius 3, no. 2, (Fall 1973), 173-96. Waite, ed., The Confederation Debates in the Province of Canada, 1865,147. The introduction of an unanimity provision in the proposed constitutional amending formula (the so-called Fulton-Favreau formula) had the effect, apparently unforeseen by the negotiators, of giving the Legislative Council a chokehold on any provincial legislation. Once the provincial government understood the implications of requiring unanimous consent of the legislatures of the provinces, abolition of the upper chamber became only a matter of time. See 'Editor's Diary,' McGLJ 12, no. 4 (1966-67), 342-3. See H. V. Nelles, The Politics of Development: Forests, Minerals and Hydro Electric Power in Ontario, 1849-1941 (Toronto: Macmillan of Canada, 1974), ch. i. Will Kymlicka, The Paradox of Liberal Nationalism,' Literary Review of Canada 4, no. 10 (November 1995), 13. According to Daniel Latouche, 'federalism is part of the genetic code of Canadians.' Globe and Mail, 30 June 1995, Ai4, 'Whose Birthday Is It Anyway?' See Garth Stevenson, Ex Una Plures, 325, and Jennifer Smith, 'Canadian Confederation and the Influence of American Federalism,' CJPS 21, no. 3 (September 1988), 457. Roger Gibbins, Senate Reform: Moving towards the Slippery Slope (Kingston: Institute of Intergovernmental Relations, 1983), 8. Arend Lijphart, 'Bicameralism: Canadian Senate Reform in Comparative Perspective,' in Herman Bakvis and William M. Chandler, eds., Federalism and the Role of the State (Toronto: University of Toronto Press, 1987), 103.

Notes to pages 168-71 285 79 Pope, Confederation, 118-19. 80 DLAUC, 22 May 1850 (IX.I.i85o), 134 (H. Boulton); see also Sir Allan MacNab, 137. 81 C.A. Scarrow, W. Lewis, and G.N. Griffin, Our Democracy: A Textbook for Grades VII-VIII (Regina and Toronto: School Aids and Textbook Publishing Co., [1944]), 153. 82 Canada, How to Become a Canadian Citizen, 2nd. ed. (Ottawa: Canadian Citizenship Branch, Secretary of State, 1949). 83 Commons Debates, 20 January 1908,1577. One justification for a second chamber that Foster did not mention but should be noted is the desire for national status. At least until the middle of the present century, when New Zealand (1950), Denmark (1953), and Sweden (1970) moved from bicameral to unicameral legislatures, a two-house parliament was considered one of the signs of national maturity. By contrast, 'unicameral bodies fall into three or four main groups: the parliaments of the minor states of southeastern Europe, Servia, Bulgaria and Greece; the congresses of the states of Central America, Nicaragua excepted, compose another group; the landtags of the Austrian crown lands are one-chambered, and so are nearly all the diets of the minor German states, excepting those of the free cities.' Quoted in Bourinot, The Canadian Dominion and the Proposed Australian Commonwealth,' 20. 84 K.C. Wheare, Federal Government, 3rd ed. (London: Oxford University Press, 1953), 21. 85 Duchacek, 'Bicommunalism: Afloat on Meech Lake/ 6. 86 Galligan, A Federal Republic, 74. For a shift in emphasis, see the discussion paper by the Constitutional Centenary Foundation, Representing the People: The Role of Parliament in Australian Democracy (1993): The Senate, at least in its original conception ... was intended as a "States" House, in the sense that it represents the States equally and was expected to pay some special attention to State interests' (11). 87 Donald V. Smiley and Ronald L. Watts, Intrastate Federalism in Canada, Royal Commission on the Economic Union and Development Prospects for Canada (Toronto: University of Toronto Press, 1985), 137. This study and the following one offer extensive bibliographic sources on Senate reform: Donald Smiley, An Elected Senate for Canada?: Clues from the Australian Experience (Kingston: Institute of Intergovernmental Relations, Queen's University, 1985). For a critical 'summary of certain public documents on Senate reform' in the 19705, see Alberta, Legislative Assembly, Report of the Alberta Select Committee on Senate Reform (March 1985), Document D. 88 Saskatoon Star-Phoenix, 27 May 1996, A7- The National Council of Women of

286 Notes to pages 171-2 Canada has urged the Government of Canada 'to finish the work of Persons Case I' by appointing an equal number of men and women to the Senate. 89 Samuel H. Beer, To Make a Nation: The Rediscovery of American Federalism (Cambridge: Belknap Press of Harvard University Press, 1993), vii and xi. 90 Bourinot, The Canadian Dominion and the Proposed Australian Commonwealth/ TRSC (1895) 20. 91 Walter N. Sage, The Annexation Movement in British Columbia/ TRSC (1927), 97-110; Cephas D. Allin, The British North American League, 1849,' Ontario Historical Society, Papers and Records 13 (1915), 74-115. On Western Canadian secession sentiment, see SAB, UFC (SS), B2/VIII/28 (file: Conventions, General, 1929-1947), 'Resolutions of the Annual Convention held at the Bessborough Hotel, October i8th to 2ist, 1938, of the United Farmers of Canada, Saskatchewan Section, Limited': 'Proposed Western Autonomous Government: Whereas press reports from Eastern Canada indicate that the political leaders and others are bitterly opposed to the Western agrarian demands for equitable treatment by the Federal authorities ... Resolve ... to instruct the board of Directors to assemble ... material upon the question of the possibility of setting upon a Western autonomous state, within the British Empire to be governed by one Western Government democratically elected by the people ...' The Leader-Post (Regina) held a ballot on secession, with those in favour winning 1,647 votes to 1,644 against (with another 398 'for consideration'), 12 November 1938. Rural voters were the 'back-bone of the secession vote/ the paper reported. On 14 March 1939, W.A.S. Tegart informed Frank Eliason, UFC (SS) secretary, that some farmers were 'mulling the secession idea over ...with the idea of using it as a club [for better grain prices].' B2/XII/B15 (file: Correspondence with District Directors; District 15,1937-45)92 The combination of rebellion (in the heart) and overt loyalty is not unknown in Canada. In 1873 the Canadian Monthly described a visit of the governor general (Lord Dufferin) to Halifax on the occasion of the arrival from England of Prince Arthur, a son of Queen Victoria. Anti-confederation sentiment still ran high in Nova Scotia, and the journal reported that the 'Antics' 'abstained from common courtesy to the governor general because he represented ... the hateful Dominion. To make the distinction more marked they testify to loyalty to Crown by paying respects to Prince Arthur.' 'Confederation in Nova Scotia - A Crisis Past/ 4 (November 1873), 361-75. 93 See Stephen Gageler and Mark Leeming, 'An Australian Republic: Is a Referendum Enough?' Public Law Review 7, no. 3 (September 1996), 143-54. The old 'Dominions' have already experienced a taste of the complexity that awaits them. Peter Oliver, 'Cutting the Imperial Link - Canada and New

Notes to pages 172-4

287

Zealand/ in Philip A. Joseph, ed., Essays on the Constitution (Wellington: Brookers, 1995), 368-403. 94 SAB, Ri022, Gardiner Papers, Davis to Gardiner, 13 September 1937, 41320-2. 95 Prochaine etape: quand nous serons vraiment chez nous. Project soumis aux membres du Parti quebecois congres, 1972, 30. At its seventh congress (1979), the party elaborated upon the structure and powers of the office of president: Chapitre IV ... b) les institutions d'une republique a gouvernement presidentiel composee: i) d'un president, a la fois chef de 1'Etat et chef du gouvernement, elu a date fixe pour quatre ans au suffrage universel direct et dont le mandat n'est renouvelable qu'une seule fois. En cas de deces, incapacite ou demission, il est remplace par un vice-president elu automatiquement en meme temps que lui. Dans 1'exercice de ses principaux pouvoirs: - il nomme les ministres et les secretaires d'Etat qui ne peuvent etre deputes en meme temps; - il propose a 1'Assemblee nationale la nomination des juges a la Cour Supreme; - il nomme les ambassadeurs avec 1'approbation des deux tiers de 1'Assemblee nationale; - il conclut les traites, sujets a ratification par les deux tiers de 1'Assemblee nationale lorsqu'ils ont pour effet de modifier la legislation interne ou comportent des depenses des deniers publics; - il possede un droit de veto sur les lois votees a 1'Assemblee nationale. Ce veto peut toutefois etre leve si la loi est adoptee une seconde fois a 1'Assemblew nationale par un vote a la majorite des deux tiers; - il est le premier responsable des forces de defense territoriale, mais il ne peut les impliquer dans aucune action majeure sans le consentement de 1'Assemblee nationale; - il a le droit degrace. Parti quebecois, Le Programme Officiel et les Statuts (Edition 1980). 7: Citizenship 1 James H. Kettner, 'Subjects or Citizens? A Note on British Views Respecting the Legal Effects of American Independence/ Virginia Law Review 62 (1976), 945-67. 2 W.K. Hancock, Survey of Commonwealth Affairs, vol. i, Problems of Nationality (London: Oxford University Press, 1937), 584. The poverty of affective mean-

288 Notes to pages 175-6 ing in this use of the term citizenship is reinforced by its appearance in Article 4 of the Anglo-Irish Treaty (that is, the 'Articles of Agreement for a Treaty between Great Britain and Ireland/ 1921). 3 Allan Gotlieb,'/'// Be with You in a Minute, Mr. Ambassador': The Education of a Canadian Diplomat in Washington (Toronto: University of Toronto Press, 1991), 34 Newspaper clipping, The Star/ [6] November 1927 in NA, MG 30, 045, Dafoe Papers, M74. Dafoe judged Mulvey's definition of citizenship 'bureaucratic.' Ibid., Dafoe to Sifton, 15 December 1927. In the same article Mulvey said that the Canadian Nationality Act, 1920 had a similar raison d' etre: 'Canada was given representation on the League of Nations, but so far as other countries were concerned, they could see no difference between Canadians and any other subjects of the British empire ... [T]he word [national] doesn't mean citizen. It is a word used throughout all the treaties/ 5 NA, MG 26, L, St Laurent Papers, vol. 253 (Speeches, Gray Memorial Lecture, University of Toronto, 13 January 1947), 7. 6 Malcolm Turnbull, The Reluctant Republic (Melbourne: Mandarin, 1993), 217 and Asiaweek, editorial, reprinted in ibid., 219. 7 Australia, Parliament of the Commonwealth of Australia, Senate Legal and Constitutional References Committee, Discussion Paper on a System of National Citizenship Indicators (May 1995), 31. See also Australia, Parliament of the Commonwealth of Australia, Report by the Senate Legal and Constitutional References Committee, National Well-Being: A System of National Citizenship Indicators and Benchmarks (April 1996). 8 Canada, House of Commons, Report of the Standing Committee on Citizenship and Immigration, Canadian Citizenship: A Sense of Belonging (June 1994), 2; Canada, Senate, Standing Senate Committee on Social Affairs, Science and Technology, Canadian Citizenship: Sharing the Responsibility (May 1993)/ 2. 9 Canada, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Citizenship and Immigration, 25 May 1994,13:6. 10 Globe and Mail, 25 September 1996, A7, 'Ottawa warned against promoting Maple Leaf.' The history of Canada's flag is a case study in institutionalized ambivalence: Choosing a flag was not an immediate concern at the time of Confederation. In 1865 the Blue Ensign had been authorized by the Secretary of State for the Colonies, and this was reconfirmed in 1870. The Red Ensign, initially assigned to the British Merchant Marine in 1707 by Queen Anne, was authorized for use on Canadian vessels by an Admiralty warrant on 2 February 1892; to distinguish Canadian from British vessels, the 1867 Canadian shield was put on the fly. By custom this flag came to be

Notes to page 176 289 regarded as Canada's flag, although officially it only could be flown at sea. In 1921 King George V granted Canada a coat-of-arms including Canada's emblem, "three maple leaves conjoined on one stem" and establishing as Canada's colours argent and gules or white and red. Four years later Parliament authorized this crest to replace the 1867 shield on the Red Ensign. By an Order-in-Council in 1924, the Red Ensign was authorized to be flown by the High Commissioner in London. In 1927 this same privilege was granted the Canadian Embassy in Washington. As one writer noted, the Union Jack, which had previously flown there, could not 'distinguish a Canadian from a British diplomatic headquarters.' In October 1945, by Order-in-Council [the prime minister Mackenzie] King authorized the Red Ensign to be flown 'until such time as action is taken by Parliament for the formal adoption of a national flag...' One month later the government introduced a motion appointing a committee to 'consider and report' on a distinctive national flag. This time the committee ... were inundated with over 2,000 designs and 42,000 letters from the public. Months later they presented their recommendation: that the flag of Canada should be 'the Canadian Red Ensign with a maple leaf in autumn golden colours replacing the Coat of Arms.' The Ensign, containing a Union Jack in the upper staff corner, was unpopular across the country but particularly in Quebec. King refused to accept the committee's recommendation on the grounds that it had not been unanimous. Sixteen years later, in the 1962 Speech from the Throne, John Diefenbaker's government promised 'as another means of making manifest the Canadian identity, [we] will invite the provinces to a conference for consultation regarding the choice of a national flag and other national symbols.' For the foregoing notes, I am grateful to Cheryl Avery, University Archivist, University of Saskatchewan and curator of the exhibit The Canadian Flag Debate/ Diefenbaker Canada Centre, Saskatoon, Saskatchewan, December 1996. The Diefenbaker government lost the 1963 election, but within a month of forming a Liberal government, Lester Pearson announced his plans for a distinctive flag. The ensuing parliamentary debate was among the longest and most emotional in Canadian history. In Australia, where there is a movement to replace the present flag ('a defaced British Ensign,' its critics charge), 'the Canadian Maple Leaf flag [is said to be] an unqualified success in giving Canada its own national and international identity and national pride.' AUSFLAG, 'Why the Flag Should Change/ 25 September 1996, http://www.ausflag.com.au.

290 Notes to pages 177-9 11 C.J. Taylor, Negotiating the Past: The Making of Canada's National Historic Parks and Sites (Montreal: McGill-Queen's University Press, 1990), 48-9 and 93-5. 12 Canadian Citizenship: A Sense of Belonging, 50. Although immigration is a concurrent power under the Constitution Act, 1867 (s. 95), the provinces historically have played a minor role in the selection of immigrants. Their responsibility lay in promoting the advantages of their regions to potential settlers and in helping with the adjustment attendant on settlement. The Canada-Quebec Accord on Immigration (1978) marked a break in this tradition, since it allowed a province to participate in the selection of independent immigrants. See Kenneth McRoberts, Misconceiving Canada: The Struggle for National Unity (Toronto: Oxford University Press, 1997), 152~313 Pierre Nora, 'Between History and Memory: Les Lieux de Memoire/ Representations 26 (April 1989), 11, quoted in Patricia Molloy, '"Lest We Remember": War, History, and Commemorative Practice as a Form of Forgetting/ in Annerl, Charlotte and Sophia Gabriel-Panteliadou, eds., Krieg/War: Eine Philosophische Auseinandersetzung aus Feministischer Sicht. Munich: Wilhelm Fink Verlag, 1997, 364. 14 James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995), ch. 5, The Historical Formation of Common Constitutionalism: The Rediscovery of Cultural Diversity, Part II.' The yearly pleas for a return to Dominion Day and its symbolism illustrate the retention, on the part of a declining number of people, of one environment of memory. 15 National Well-Being: A System of National Citizenship Indicators and Benchmarks, ch. 4, 'Participation and Citizenship/ 16 Canadian Citizenship: A Sense of Belonging, j. 17 Philip Stratford, trans., Andre Laurendeau: Witness for Quebec (Toronto: Macmillan of Canada, 1973), 176. 'How to "Weld" Us' (10 June 1958). A decision in 1946 to omit ethnic origin from the quinquennial census of the prairie provinces had prompted an earlier protest to then prime minister Louis St Laurent. Among the arguments advanced was the following, in a memorial from La Chambre de Commerce du District de Montreal: 'Continuer ces "oublis" quant a 1'origine raciale dans le recensement de 1'ouest equivaudrait a confiner officiellement les Canadiens de langue franchise dans le Quebec.' NA, MG 26, L, St Laurent Papers, vol. 26 (file 161: Citizenship 1947-1948 ), Gilbert-A. LaTour to St Laurent, 30 June 1947. 18 William Kilbourn, The Firebrand: William Lyon Mackenzie and the Rebellion in Upper Canada (Toronto: Clarke, Irwin and Co., 1956), 99. 19 Chuck Thompson, 'Canada's Champion of Letters,' American Way 29, no. i (i January 1996). The Woodcock and McNaught quotations appear in George

Notes to pages 180-2 291

20

21

22

23 24 25 26 27

28 29 30 31

Tomkins, 'Canadian Education and the Development of a National Consciousness: Historical and Contemporary Perspectives/ in Alf Chaiton and Neil McDonald, eds., Canadian Schools and Canadian Identity (Toronto: Gage Educational Publishing Limited, 1977), 8-9. Linda Colley, 'Radical Patriotism in Eighteenth-Century England/ in Raphael Samuel, ed., Patriotism: The Making and Unmaking of British National Identity, 3 vols. (London: Routledge, 1989), 1:171. Veronica Strong-Boag, 'Canadian Feminism in the 19205: The Case of Nellie McClung/ in R. Douglas Francis and Howard Palmer, eds., The Prairie West: Historical Readings (Edmonton: Pica Pica Press/University of Alberta Press, 1985), 467-8; Mary Vipond, 'Canadian National Consciousness and the Formation of the United Church of Canada/ The Bulletin 24 (1975), 7; Sandra Campbell, 'From Romantic History to Communications Theory: Lome Pierce as Publisher of C.W. Jeffreys and Harold Innis/ JCS 30, no. 3 (Fall 1995), 91Neil Semple, The Lord's Dominion: The History of Canadian Methodism (Montreal: McGill-Queen's University Press, 1996), 348; Nancy Christie and Michael Gauvreau, A Full-Orbed Christianity: The Protestant Churches and Social Welfare in Canada, 1900-1940 (Montreal: McGill-Queen's University Press, 1996), 180. William H. Magney, The Methodist Church and the National Gospel, 18841914,' The Bulletin 20 (1968), 88. Semple, The Lord's Dominion, 431. The electoral base of church union is recounted by Semple at 431-9. Saskatchewan, Department of Education, Canada's Golden Jubilee of Confederation, 1867-1917 (Regina: King's Printer, 1917), 36. The Grain Growers' Guide, 7 May 1919, 7. Christie and Gauvreau, A Full-Orbed Christianity, 169-71. One of the advocates of rural reconstruction was the Ryerson Press's Lome Pierce, a Methodist clergyman and chairman of the Church's Committee on Rural Life. The Social Credit Manual is discussed in David Laycock, Populism and Democratic Thought in the Canadian Prairies, 1910 to 1945 (Toronto: University of Toronto Press, 1990), 235. C.A. Scarrow and G.N. Griffin, Citizenship and Character Education (A Manual for Grades III and IV) (Regina: School Aids Publishing Co., 1932), 98,100,102. Mary Vipond, 'Canadian National Consciousness/ 8. R.S. Jenkins, Canadian Civics (Toronto: Copp, Clark and Co., 1910, B.C. ed.; 1918 Ontario), 166. Peter Burroughs, 'Loyalists and Lairds: The Politics and Society of Upper Canada Reconsidered/ JICH 19, no. i (January 1991), 75.

292 Notes to pages 182-4 32 James T. Shotwell, The Autobiography of James T. Shotwell (New York: BobbsMerrill, 1961), 27. 33 Robert M. Stamp, The Schools of Ontario, 1876-1976 (Toronto: University of Toronto Press, 1982), 34. As Stamp notes, in balancing Canadian and imperial interests Ross had to compromise his personal preference for placing knowledge of Canada first. E.J. Hobsbawn discusses the ceremonies and theatricals of imperialism, noting that Empire Day was established in Britain in 1902. The Age of Empire 1875-1914 (London: Weidenfeld and Nicolson, 1987)7 7034 Horace Mann, Twelfth Annual Report to the Massachusetts Board of Education (1848), cited in Robert M. Stamp, 'Canadian Education and National Identity/ in Chaiton and McDonald, eds., Canadian Schools and Canadian Identity, 30. For an assessment of Mann's stature in the pantheon of republican education, see Christopher Lasch, The Revolt of the Elites and the Betrayal of Democracy (New York: W.W. Norton and Co., 1995), ch. 8, The Common Schools: Horace Mann and the Assault on Imagination.' Education was about more than inculcating loyalty; it was 'entirely [about] ... citizenship ... to democratize the young and to prevent aristocratic tendencies.' Judith N. Shklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1991), 77. 35 Henry Teune, The Learning of Integrative Habits/ in Philip E. Jacob and James V. Toscano, eds., The Integration of Political Communities (Philadelphia: J.B. Lippincott Co., 1964), 257n. 36 J.H. Hexter, 'Review Essay of J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and Atlantic Political Tradition/ History and Theory 16 (1977), 33237 C. A. Scarrow and G.N. Griffin, Citizenship and Character Education (A Manual for Grades I and II), (5th ed. Regina: School Aids Publishing Co., 1946), 114. 38 R.S. Jenkins, Canadian Civics, 8-9. 39 Ibid., 7. 40 Christopher W. Besant, Two Nations, Two Destinies: A Reflection on the Significance of the Western Australian Secession Movement to Australia, Canada and the British Empire, WALR 20 (1990), 246. 41 On the eightieth anniversary of the taking of Vimy Ridge, the Globe and Mail noted that although the battle cost 3,568 Canadian lives, with another 10,600 wounded, the battle 'showed ... that Canada was no mere colony any more/ 10 April 1997, Ai. On memorials in the national capital, see National Capital Commission, Capital Commemoration: An Urban Design Study for Memorials in the Core of the National Capital (n.p.: n.p., [1989]); C.P. Stacey, Canada's Soldiers:

Notes to pages 184-5

42

43

44

45

46

47

48

2

93

The Military History of an Unmilitary People, rev. ed. (Toronto: Macmillan, 1960). Under the label 'cadet training/ the UFC (SS) 'strongly protested] ... physical education being in any way connected with ... the militia and defence/ SAB, UFC(SS), B2/VIII/28 (file: Conventions, General 1929-1947). See also Stamp, The Schools of Ontario, 1876-1976, 93-4 and 172-3. Margaret Prang, 'Nationalism in Canada's First Century,' Canadian Historical Association Historical Papers (1968), 114-25. For a relevant study of one of these influences, see Gordon Selman, 'Adult Education and Citizenship,' in Frank Cassidy and Ron Paris, eds., Choosing Our Future: Adult Education and Public Policy in Canada (Toronto: Ontario Institute for Studies in Education, 1987), 36-49Pamela M. Pilbeam, Republicanism in Nineteenth-Century France, 1814-1871 (London: Macmillan, 1995), 43-5. See also Michael Herzfeld, The Social Production of Indifference (New York: Berg, 1992), ch. 4, The Language Fetish.' F.R. Scott, 'The Growth of Canadian National Feeling,' in 'Canada and the Commonwealth' (typescript prepared for the British Commonwealth Relations Conference, CIIA, 1938), 56 in NA, MG 31, £46, Reid Papers, vol. 36 (file: Scott, Frank R. (i), 1933-39). For a complementary interpretation, see Mary Vipond, 'National Consciousness in English-Speaking Canada in the 19205: Seven Studies' (PhD thesis, University of Toronto, 1974). A contrasting view, which sees 'national consciousness' realized most fully within the Empire, is found in Rt Hon. Sir George E. Foster, Citizenship, The Josiah Wood Lectures, 1926 Sackville, N.B.: Mount Allison University, 1926). The period is recounted in Escott Reid, Radical Mandarin: The Memoirs of Escott Reid (Toronto: University of Toronto Press, 1989), ch. 6, 'National Secretary of the Canadian Institute of International Affairs, 1932-1938.' For more detail, see Leslie A. Pal, 'Identity, Citizenship, and Mobilization: The Nationalities Branch and World War Two/ CPA 32 (Fall 1989), 407-26, and Jennifer Stewart-Toth, 'Constructing Citizenship: A Study of the Institutional Development of Citizenship in Canada' (MA thesis, University of Saskatchewan, 1995), ch. 3. Pal's research is based on records held by NA. Stewart-Toth and this author use USA, M 2.2, G.W. Simpson Papers, file 9: Citizenship Division, 1941-1946. According to Pal, Simpson was a 'driving force' in the Nationalities Branch during its first year; he resigned in 1942 due to ill health. The establishment of the Department of National War Services is discussed in Norman Ward and David Smith, Jimmy Gardiner: Relentless Liberal (Toronto: University of Toronto Press, 1990), ch. 14. These quotations come from two sets of minutes of the Advisory Committee on Cooperation in Canadian Citizenship (Nationalities Branch) and a four-

294 Notes to pages 186-7

49

50 51

52 53

54 55 56

page report (with annexes) providing an outline of the branch's history and activity; 29 September 1942, 25 and 26 November 1943, and 26 December 1942, respectively. All are found in Simpson Papers, file 9. Ibid., annex, dated 25 September 1942, to report of 26 December 1942. Lest it be thought that wartime citizenship activities were confined to Canadians of non-Charter origins, it should be noted that the Writers' War Committee (a creation of the Canadian Authors' Association), in cooperation with the federal government's Wartime Information Board, recruited Canadian writers to the war effort. As an example of their initiatives, following allied military success in the Tunisian campaign (1943), the committee urged writers 'to intensify ... efforts to sustain the excellent morale of Canadians by keeping the reading and listening public wisely informed of the true significance of this global war.' Suggested literary topics to this end included 'a poem incorporating the past history of Carthage, and more practical exercises, such as 'A Tribute to the Merchant Marine' and a reminder of the importance of rationing as a 'civic responsibility.' In addition, the committee became involved in 'popularizing Canada in the United States' and 'selling Quebec to Canada.' John Grierson, who assumed the chairmanship of the War Information Board in 1943, distanced the board from the committee's work, partly because he opposed the committee's practice of differentiating between its English and French sections. As a general policy, he said: T think even in the case of pluralism a covering identity is not only possible but to be diligently sought.' University Archives, Acadia University, Watson Kirkconnell Papers, File 9 (Writers' War Committee): 9/2.200, 9/3.40 Grierson to Kirkconnell [chairman, Writers' War Committee], 8 February 1943 and 9/3.64 'Dear [CAA] Member,' 5 June 1943. Pal, 'Identity, Citizenship, and Mobilization,' 420. House of Commons Debates, 20 March 1946,131, cited in Stewart-Toth, 'Constructing Citizenship,' 54. The debate on the bill is analysed by Mildred A. Schwartz, 'Citizenship in Canada and the United States,' TRSC (1976), 83-96. NA, MG 26, L, St Laurent Papers, vol. 253 (Speeches, Canadian Citizenship, Canadian Club Address, Montreal), 6 January 1947. See Cheryl Zollars and Theda Skocpol, 'Cultural Mythmaking as a Policy Tool: The Social Security Board and the Construction of a Social Citizenship of Self-interest,' in Frederick D. Weil, ed., Research on Democracy and Society : Political Culture and Political Structure: Theoretical and Empirical Studies, vol. 2 (Greenwich, Conn.: JAI Press, 1994), 381-408. Dennis Duffy, Gardens, Covenants, and Exiles: Loyalism in the Literature of Upper Canada/Ontario (Toronto: University of Toronto Press, 1982), 92 . Shklar, American Citizenship, 46-7. J.L. Granatstein, The "Hard" Obligations of Citizenship: The Second World

Notes to pages 188-93

57

58 59 60

61 62 63

64 65 66

67

68

69

70 71 72

2

95

War in Canada/ in William Kaplan, ed., Belonging: The Meaning and Future of Canadian Citizenship (Montreal: McGill-Queen's University Press, 1993), 44-5. Anne Summers, 'Edwardian Militarism/ in Raphael Samuel, ed., Patriotism: The Making and Unmaking of British National Identity, vol. i, History and Politics (London: Routledge, 1989), 248-54. Stratford, ed., Andre Laurendeau: Witness for Quebec, 120. Reva Joshee, The Federal Government and Citizenship Education for Newcomers/ Canadian and International Education 25, no. 2 (December 1996), 117. Max Nemni, 'Ethnic Nationalism, and the Destabilization of the Canadian Federation/ paper presented at Joint Conference of the International Association of Centres for Federal Studies and the International Political Science Association, 1-6 August 1993, republished by Laboratoire d'etudes politiques et administratives, Universite Laval, Quebec City, Quebec, 7. Joshee, 'Federal Government and Citizenship Education for Newcomers/ 115. DLAUC, 23 March 1846 (V.I.1846), 34 (Cauchon). Shklar, American Citizenship, Introduction. 'In 1924 ... Congress ... impose[d] American (national and state) citizenship on all Native peoples as individuals, whether they had opted for citizenship via the General allotment route or not, whether they wanted citizenship or not.' Andrea Bear Nicholas, 'Citizenship Education and Aboriginal People: The Humanitarian Art of Cultural Genocide/ Canadian and International Education, 25, no. 2 (December 1996), 73. Nicholas, 'Citizenship Education and Aboriginal People/ 78. Nemni, 'Ethnic Nationalism, and the Destabilization of the Canadian Federation/ 9. S.D. Clark, The Attack on the Authority Structure of Canadian Society, TRSC 14 (1976), 6. Judith Shklar emphasizes the traditional American dislike of 'legal privileges' and 'unearned advantages.' American Citizenship, 73. Jean Leca, 'Questions on Citizenship/ in Chantal Mouffe, ed., Dimensions of Radical Democracy: Pluralism, Citizenship, Community (London: Verso, 1992), 22; see also Bryan Turner, 'Outline of a Theory of Citizenship/ in ibid., 37. On the Court Challenges Program, see David E. Smith, The Invisible Crown: The First Principle of Canadian Government (Toronto: University of Toronto Press, 1995), 149-50. Nathan Glazer, Ethnic Dilemmas, 1964-1982 (Cambridge: Harvard University Press, 1983), 227, quoted in Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995), 66. Hattie Plum Williams, The Road to Citizenship: A Study of Naturalization in a Nebraska County/ PSQ 27 (1912), 417. Hugh Llewellyn Keenleyside, 'Canadian Immigration Policy/ Addresses, 1948-49 (Toronto: The Empire Club of Canada, 1949), 211-12. R.J. Sharpe, 'Bora Laskin and Civil Liberties/ UTLJ 35 (1985), 643. The Win-

296 Notes to pages 193-4 ner citation is Winner v. S.M.T. (Eastern) & A.G. of New Brunswick, [1951] S.C.R. 887, the quotation at 918 (internal notes omitted). According to Sharpe, Laskin 'inferred the right to exercise political freedom free of provincially imposed restraints.' For a discussion of a case of comparable importance to Australia, Australian Capital Television v. Commonwealth, 177 Commonwealth Law Reports (1992), 106, where the High Court discovered an implied right to free speech in the Constitution, see Brian Galligan, A Federal Republic: Australia's Constitutional System of Governance. (Melbourne: Cambridge University Press, 1995), 30-1. The High Court noted 'in Canada the existence of an implied guarantee of freedom of communication ... as an essential feature of Canadian democracy having constitutional status even before the Canadian Charter of Rights and Freedoms' (in). 73 Nemni, 'Ethnic Nationalism and the Destabilization of the Canadian Federation,' 8. 74 Alan C. Cairns, 'Citizens (Outsiders) and Governments (Insiders) in Constitution-Making: The Case of Meech Lake,' in Douglas E. Williams, ed., Disruptions: Constitutional Struggles from the Charter to Meech Lake (Toronto: McClelland and Stewart, 1991), ill. 75 Andrew Fraser, 'Beyond the Charter Debate: Republicanism, Rights and Civic Virtue in the Civil Constitution of Canadian Society/ Review of Constitutional Studies i, no. i (1993), 30. 76 Alan C. Cairns, The Fragmentation of Canadian Citizenship/ in William Kaplan, ed., Belonging, 205-6. 77 Tully, Strange Multiplicity, 136. 78 Alan C. Cairns, The Fragmentation of Canadian Citizenship/ 204. 79 Will Kymlicka and Wayne Norman, 'Return of the Citizen: A Survey of Recent Work on Citizenship Theory/ Ethics 104 (January 1994), 372-5. 80 Ibid., 376-7. The authors cite Charles Taylor's much-quoted reference to unity in multination states being founded on recognition of 'deep diversity.' They say, however, that 'he [Taylor] admits it is an open question what holds a country together.' 81 Multiculturalism and Citizenship Canada (1991-2), 'Citizenship Discussion Document/ cited in Canada, Canadian Heritage, Corporate Review Branch, Strategic Evaluation of Multicultural Programs, Final Report (March 1996), 74 (a handwritten notation on the cover of the Report reads 'Brighton Research'). Compare this description with the answer offered in 1931 to the question 'Who is a Good Citizen?' 'A good citizen is a well-behaved person - one who is obedient, honest, trustworthy, sympathetic, loyal, considerate of others, dutiful, industrious, reverent, provident, an active force for good.'

Notes to pages 195-200 297 Saskatchewan, Department of Education, Public School Curriculum and Teachers' Guide, Grades I-VIII(Regina: King's Printer, 1931), 89. 82 Michael Walzer, The Civil Society Argument,' in Chantal Mouffe, ed., Dimensions of Radical Democracy: Pluralism, Citizenship, Community (London: Verso, 1992) 89-107, originally published as The Idea of Civil Society/ Dissent 38 (Spring 1991), 293-304. 83 Lasch, The Revolt of the Elites, 172. 84 As Robert Fulford admits in 'A Post-Modern Dominion: The Changing Nature of Canadian Citizenship,' in Kaplan, ed., Belonging, 106: '[B]ut making these multifarious personal Canadas cohere into a collectivity appears so far to be beyond our intellectual range.' Ibid. 85 For a contrary view see Alan C. Cairns and Cynthia Williams, 'Constitutionalism, Citizenship and Society in Canada: An Overview,' in Cairns and Williams, eds. Constitutionalism, Citizenship and Society in Canada (Toronto: University of Toronto Press in co-operation with the Royal Commission on the Economic Union and Development Prospects for Canada, 1985), 18-19; also David P. Shugarman, The Social Charter,' in Duncan Cameron and Miriam Smith, eds., Constitutional Politics: The Canadian Forum Book on the Federal Constitutional Proposals, 1991-92 (Toronto: James Lorimer & Co., 1992), 159. 86 Garry Wills, 'James Wilson's New Meaning for Sovereignty,' in Terence Ball and J.G.A. Pocock, eds., Conceptual Change and the Constitution (Lawrence: University of Kansas Press, 1988), 103. 87 Rainer Knopff, 'Courts and Character,' paper presented at the annual meeting of the Canadian Political Science Association, St Catharines, Ontario, 2-4 June 1996,18. 88 Stefan Collini, The Idea of "Character," in Victorian Political Thought/ TRHS 35 (1985), 29-50. 89 Peter H. Russell, Constitutional Odyssey: Can Canadians Be a Sovereign People? (Toronto: University of Toronto Press, 1992), 193. 8: Context and Contrast i The relevant letters are Elgin to Grey, 23 March 1850; Elgin to Grey, 17 December 1850; and Grey to Elgin, 10 January 1851, in Sir Arthur G. Doughty, ed., The Elgin-Grey Papers, 1846 to 1852, 4 vols. (Ottawa: King's Printer, 1937), 2:608-13,774-6, and 777-9. The anthropomorphic imagery Elgin employed to describe the constitution echoes anatomical methaphors popularized by William Harvey. The heart, Harvey told Charles I (1628), is 'the principle of man's body, and the image of your kingly power.' According to one writer, Harvey 'dethroned the heart in the same year as the English Republic was

298 Notes to pages 200-4 proclaimed.' Christopher Hill, 'William Harvey and the Idea of Monarchy/ Past and Present 27 (April 1964), 54 and 56. See H.A.L. Fisher, The Republican Tradition in Europe (New York: G.P. Putnam's Sons, 1911) for discussion of the debate over the Second Republic's institutional structure, 224-5. 2 Doughty, ed., The Elgin-Grey Papers, Elgin to Grey, 23 March 1850, 611. 3 Ibid., Elgin to Grey, 17 December 1850,775. 4 Richard McGarvie, 'A Republic Safe for Democracy,' The Australian Online, 29 April 1997. For an earlier elaboration of his argument, see Richard E. McGarvie, 'Governorship in Australia Today: The Role and Function of the Governor in a Parliamentary Democracy/ The Parliamentarian, 75 (July 1994), 149-54. McGarvie's alternative to election is that a constitutional council of three eminent Australians take over the role of the Queen. 5 George Watson, 'An Age of Monarchies?' Quadrant (July-August 1993), 35-8. For a tabular summary of European monarchies since 1850, see Richard Rose and Dennis Kavanagh, The Monarchy in Contemporary Political Culture/ Comparative Politics 8 (July 1976), 569. 6 For a description of these events, see E.H. Kossmann, The Low Countries, 1780-1940 (Oxford: Clarendon Press, 1978), 151-60 and 164-78 and Fisher, The Republican Tradition in Europe, 192-7. 7 Leo Kohn, The Constitution of the Irish Free State (London: George Allen and Unwin, 1932), 179. A popularly constituted monarchy is not necessarily superior in the affections of its subjects, however. Leopold I recognized that 'the English are very personal/ and he told his niece, Queen Victoria, that 'to continue to love people they must see them, and even in part touch them.' G.E. Buckle, ed., The Letters of Queen Victoria, 2nd ser., 3 vols., 1926-8,1:219, quoted in Walter L. Arnstein, 'Queen Victoria Opens Parliament: The Disinvention of Tradition/ Historical Research 63, no. 151 (June 1990), 187. In his biography of Andre Laurendeau, Donald Horton makes the same point by citing the influence of the Belgian monarchy on the thinking of one prominent Canadian: 'It so happened that his trip to Belgium [in 1937] closely followed Queen Astrid's death as the result of a car accident. He was amazed that the Belgians, divided in so many ways, could set their differences aside to rejoice in their new monarch, Leopold III, and his young wife. It became clear to him that a constitutional monarchy, even reduced to powerlessness, could have more meaning for a people than an elected chief of state. "A Royal family can represent the living traditions of a people ... very, very curious ... But it does explain the British to me."' Donald J. Horton, Andre Laurendeau: French-Canadian Nationalist, 1912-1968 (Toronto: Oxford University Press, 1992), 62. 8 DLAUC, 19 October 1852 (XI.II.i852-3), 1110. 9 NA, MG3O A25, Forsey Papers, typed sheet headed 'Saskatchewan Brief/

Notes to pages 204-7

10 11 12 13

14

15

16

17 18

2

99

n.d. [1945] (file 57/28, Disallowance of provincial acts (2), 1945,1948); Eugene Forsey, 'Constitutional Monarchy and the Provinces/ in Forsey, ed., Freedom and Order (Toronto: McClelland and Stewart, 1974), 21-32. This article originally appeared in a report to the Ontario Advisory Committee on Confederation set up in 1965. It is not clear from introductory notes who the proponents of republicanism in this instance were. Gerard Bergeron, Quand Tocqueville et Siegfried nous observaient (Quebec: Les Presses de 1'Universite du Quebec, 1990), 37 and 36. DLAUC, 31 October 1843 (III (1843)), 539. Malcolm Turnbull, The Reluctant Republic (Melbourne: Mandarin Books, 1993), 3Commons Debates, 5 February 1900,64-72, quoted in Frederick Madden and John Darwin, eds., The Dominions and India since 1900: Select Documents on the Constitutional History of the British Empire and Commonwealth, vol. 6 (Westport, Conn.: Greenwood Press, 1993), 5-8. Christopher W. Besant, Two Nations, Two Destinies: A Reflection on the Significance of the Western Australian Secession Movement to Australia, Canada and the British Empire/ WALK 20 (1990), 246. Significantly, this quotation comes from an anonymous, and unpublished, article ('Canada Should Secede/ by 'U.E.L.'), submitted to Saturday Night in November 1938. In his reply to Reid, Sandwell, the managing editor, said he did 'not think it would be wise to publish ["your friend's"] article. Words are more dangerous than ideas ... In a League-less and war-torn world, Canada can only be, either a colony of Britain (which she resents), or a member of a Pan-American group ...' NA, MG 31, £46, Reid Papers, vol. 36 (file: Sandwell, Bernard K., (i), 1935,1938), Sandwell to Reid, 19 November 1938. Australia, Republic Advisory Committee, An Australian Republic: The Options, vol. 2, The Appendices (Canberra: Australian Government Publishing Service, 1993), Appendix I, i. Leslie Zines, Constitutional Change in the Commonwealth (Cambridge: Cambridge University Press, 1991), 3. Peter Oliver, 'Cutting the Imperial Link - Canada and New Zealand/ in Philip A. Joseph, ed., Essays on the Constitution (Wellington: Brooker's, 1995), 378 and 403. In support of this interpretation, Oliver cites B. Slattery, The Independence of Canada/ SCLR 5 (1983), 384, and P.W. Hogg, Constitutional Law of Canada, 3rd ed. (Toronto: Carswell, 1992), 56. The Supreme Court of Canada in the Patriation Reference case, says Oliver, 'was reluctant to acknowledge ... the gradual attainment of independence ... because such an admission could amount to an acknowledgement that conventions can "crystallise" into law' (380).

300 Notes to pages 207-10 19 John D. Whyte, The Australian Republican Movement and Its Implications for Canada/ Constitutional Forum 4, no. 3 (Spring 1993), 92. 20 See Globe and Mail, 25 January 1997, A2, and 31 January 1997, A4. 21 Ruth Abbey and Charles Taylor, 'Communitarianism, Taylor-made: An Interview with Charles Taylor/ Australian Quarterly 68, no. i (1996), 6. 22 James Duffy, 'Ireland/ Appendix 4 - Overseas Studies, in Australia, Republic Advisory Committee, An Australian Republic: The Options, vol. 2, The Appendices, 116. 23 Ibid., 154-5. 24 Kohn, The Constitution of the Irish Free State, 37. 25 Article 51, Constitution of the Irish Free State, 1922; Kohn, The Constitution of the Irish Free State, 51; D.W. Harkness, The Restless Dominion: The Irish Free State and the British Commonwealth of Nations, 1921-31 (London: Macmillan, 1969), 19. If Ireland borrowed from Canadian example in 1922, it was only reciprocating an earlier transfer in the opposite direction. W.L. Morton has hypothesized that 'the idea of "responsible government" came to Canada from Irish sources.' Morton discusses proposals of the 17803 and 17905 to introduce local responsibility into Irish politics; this debate ceased with the Union Act (1801), which introduced a single Crown and a single parliament. W.L. Morton, The Local Executive in the British Empire, 1763-1828,' EHR 78 (1963), 441-5. Linking Ireland's status to that of Canada had the unexpected consequence of limiting Canada's constitutional development. Canada had prohibited criminal appeals to the Judicial Committee of the Privy Council (JCPC) in 1888. In Nadan v. The King, [1926] A.C. 482, the JCPC held that provision invalid. As Jacqueline Krikorian has demonstrated, the JCPC's action was directed not at Canada but at Ireland, for if Canada were found competent to end appeals, so too would Ireland. Many British politicians, including the Lord Chancellor of the day, Viscount Cave, resisted this conclusion. 'Imperial Politics and the Judicial Committee: An Examination of Nadan v. The King,' paper presented at the sixty-ninth annual meeting of the Canadian Political Science Association, St John's, June 1997. 26 Government of Ireland, Report of the Constitution Review Group (Dublin: Stationery Office, 1996), 25. Remaining quotations in this paragraph are from the Report, 25-32. Both the Report and Duffy's study of the presidency for the Australian Republic Advisory Committee examine the seven major powers of the President, one of which concerns dissolution. The others are specific to Irish politics, never or seldom exercised and extraneous to this study. 27 Duffy, 'Ireland/ 117.

Notes to pages 210-16 301 28 Arthur Dorland, The Republican Tradition in the British Empire and the Commonwealth/ TRSC 44 (1950), Section II, 15. 29 Alan J. Ward, The Irish Constitutional Tradition: Responsible Government and Modern Ireland, 1782-1992 (Washington: Catholic University of America Press, 1994), 316-19; Irish Independent, 15 August 1996, 5. 'President's "eccentric" diaspora bid.' 30 Nicholas Mansergh, Survey of British Commonwealth Affairs: Problems of Wartime Cooperation and Post-War Change, 1939-1952 (London: Oxford University Press, 1958), 295. See also Michael Brecher, 'India's Decision to Remain in the Commonwealth,' JCCP 12, no. i (March 1974), 62-90, and 'India's Decision to Remain in the Commonwealth: A Supplementary Note,' in ibid., no. 2 (July 1974), 228-30. 31 N A, MG 31^46, Reid Papers, Reid to Ruth [Reid], 24 January 1950. 32 A.G. Noorani, 'India,' Appendix 4 - Overseas Studies, in Australia Republic Advisory Committee, An Australian Republic: The Options, vol. 2, The Appendices, 79 (emphasis added). 33 B.N. Rau, Indian's Constitution in the Making (Bombay: Orient Longmans, 1960). 34 Ibid., 277. 35 Ibid., 279. But see p. 376 for a different interpretation of the Irish presidency. 36 Dr B.R. Ambedkar, chairman of constituent assembly drafting committee, 30 December 1948, Constituent Assembly Debates, 7:1158, quoted in Noorani, 'India,' 83. 37 Constituent Assembly Debates, 10:114-15 and 11:988, quoted in Noorani, 'India/ 85. 38 Noorani, 'India/ 87. 39 Seetha Pathasarathy, 'India/ in Constitutional Centenary Foundation, Heads of State: A Comparative Perspective (Carlton, Victoria: Constitutional Centenary Foundation, 1993), 2740 John Hirst, 'Who Tugged the Forelock?: Australian Attitudes to Britain and Independence/ Quadrant (November 1995), 11. 41 John Higham, Send These to Me (New York: Atheneum, 1976), 6, quoted in Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995), 215. 42 George Winterton, The Constitutional Implications of a Republic/ in M.A. Stephenson and Clive Turner, eds., Australia, Republic or Monarchy?: Legal and Constitutional Issues (St Lucia: University of Queensland Press, 1994), 15. 43 George Winterton, Monarchy to Republic: Australian Republican Government (Melbourne: Oxford University Press, 1986), 8. This could be done by replacing those sections of the Constitution (the Commonwealth of Australia Constitution Act), that is, ss. 2, 3, 4, and 126, 'with a provision specifying the

3O2 Notes to pages 217-21 qualifications, mode of election, term of office, method of removal, and salary of the president and, if thought appropriate, a vice-president.' In addition, those sections dealing with the 'reservation of Bills by the GovernorGeneral for the Queen's assent and allowing the Queen to disallow Commonwealth legislation' would be repealed, and references to 'the Queen' and 'the Governor-General' would be replaced by references to 'the president.' Winterton admits that separate provision would have to be made for State governments 'should [they] also become republican' (9). 44 John Hirst, A Republican Manifesto (Melbourne: Oxford University Press, 1994)/ 445 Ibid., 48-9. 46 Francis Burt, 'Monarchy or Republic - It's All in the Mind,' WALK 24 (July 1994), 6. 47 Andrew Fraser, 'Strong Republicanism and a Citizen's Constitution/ in Wayne Hudson and David Carter, eds., The Republicanism Debate (Kensington, N.S.W.: New South Wales University Press, 1993), 37. 48 Hirst, A Republican Manifesto, 27. 49 Harry Evans, 'Introduction: The Agenda of the True Republicans,' in Harry Evans, Essays on Republicanism: Small r Republicanism, Papers on Parliament, no. 24 (Canberra: Department of the Senate 1994), 16. 50 Suri Ratnapala, The Other Road to the Republic: the Separation of Powers,' in Stephenson and Turner, eds., Australia, Republic or Monarchy?, 213. 51 Campbell Sharman, 'Defining Executive Power: Constitutional Reform for Grown-ups' (Australian Senate Occasional Lecture Series, Parliament House, Canberra, 22 November 1996), 12-13. 52 See Vernon Bogdanor and Geoffrey Marshall, 'Dismissing Governor-Generals,' Public Law (Summer 1996), 212-13. Footnote i discusses at length 'some uncertainty about the pluralisation and hyphenation of Governor-Generals.' 53 Winterton, Monarchy to Republic, 103. Sir Harry Gibbs, however, argues that republicanism will lead to 'a diminution of the power of the States and the Senate.' The Constitutional Framework of the Australian Monarchy,' in Gareth Grainger and Kerry Jones, eds., The Australian Constitutional Monarchy (Sydney: ACM Publishing, 1994), 34. 54 Brian Galligan, A Federal Republic: Australia's Constitutional System of Government (Melbourne: Cambridge University Press, 1995), 14. 55 The States and a Republic' (a legal opinion by Sir Harry Gibbs and the legal committee of Australians for Constitutional Monarchy in response to the Republic Advisory Committee Report), in Stephenson and Turner, eds., Australia, Republic or Monarchy?, Appendix 2. But see Gerard Carney, 'Republicanism and State Constitutions,' ibid., 183-210.

Notes to pages 221-4

3°3

56 Nicholas Mansergh, Survey of British Commonwealth Affairs: Problems of External Policy, 1931-1939 (London: Oxford University Press, 1952), 347-53. 57 A.G. Noorani, The Presidential System: The Indian Debate (New Delhi: Sage Publications, 1989), 38f. 58 Fraser, 'Strong Republicanism and a Citizen's Constitution,' in Hudson and Carter, The Republican Debate, 51-2. 59 Sharman, 'Australia as a Compound Republic,' 3. 60 DJ. Heasman, review of J.A. LaNauze, The Making of the Australian Constitution (Melbourne: Melbourne University Press, 1973), Canadian Journal of History 10, no. 3 (Dec. 1975), 417. 61 DLAUC, 27 May 1850 (IX.I.i85o), 259-60. The territorial alternation of the office of Speaker earned similar rebuke from William Lyon MacKenzie: '[N]either Napoleon nor Wellington held command in right of place of birth; nor ought the Speaker to be chosen on that ground.' Ibid., 5 September 1854 (XII.1.1854-5), 3. Lord Elgin despaired of responsible government in a situation when the French 'insist on their right to have a share in the administration not because the Party they have chosen to connect themselves with is in the ascendant, but because they represent a people of distinct origin.' Elgin to Grey, 28 June 1849, Doughty, ed., The Elgin-Grey Papers, 1846-1852,1:52. 62 Harold A. Innis, 'Political Economy in the Modern State,' in Harold A. Innis, Political Economy of the Modern State (Toronto: Ryerson Press, 1946), 132. 63 Sharman, 'Australia as a Compound Republic/ 3. 64 Inter-Provincial Conference of the Premiers, no. 8, Verbatim Transcript, 16 April 1981 (Ottawa), 16-17 (J- Angus MacLean). 65 Sharman, 'Australia as a Compound Republic/ 3. 66 The phrase 'false populism' appears in John Ralston Saul, The Unconscious Civilization (Toronto: Anansi, 1995), 162. Saul does not use it to describe the Reform Party of Canada but to analyse the effects of the modern corporate economy. 67 Globe and Mail, 3 October 1995, A2i. 68 J.B. Brebner, New England's Outpost: Acadia before the Conquest of Canada (New York, 1927), 47, quoted in S.D. Clark, Movements of Political Protest in Canada, 1640-1840 (Toronto: University of Toronto Press, 1959), 16; David Arnason and Vincent Arnason, The New Icelanders: A North American Community (Winnipeg: Turnstone Press, 1994), 4; Canadian Monthly 6 (1874) 529. Local autonomy in the United States led to 'island communities/ wrote Robert H. Wiebe, The Search for Order, 1877-1920 (New York, 1967), cited in Andrew Fraser, 'Legal Amnesia: Modernism versus the Republican Tradition in American Legal Thought/ Telos 60 (Summer 1984), 26.

304 Notes to pages 225-9 9: Conclusion 1 Lord Elgin to Lord Grey, 27 August 1849 in Sir Arthur G. Doughty, ed., The Elgin-Grey Papers, 1846 to 1852,4 vols. (Ottawa: King's Printer, 1937), 1:452. 2 Patrice Gueniffey, 'Cordeliers and Girondins: The Prehistory of the Republic? In Biancamaria Fontana, ed., The Invention of the Modern Republic (Cambridge: Cambridge University Press, 1994), 97. 3 For a survey of Canadian feeling in this matter, see J.L. Granatstein, Yankee Go Home?: Canadians and Anti-Americanism (Toronto: HarperCollins Publishers, 1996). 4 See, for example, Ronald Dworkin, The Curse of Money/ New York Review of Books, 17 October 1996,19-24. 5 DLAUC, 20 March 1849 (VIII.II.i849), 1443. Papineau's appreciation of the empire of theory in the matter of the America republic made him prescient as well: 'L'un d'eux [les etats] ne pourrait pas se constituer monarchiquement ou aristocratiquement. Us ont acquiesce a faire partie de leur glorieuse confederation, a la condition de se donner des constitutions electives democratiques. Si 1'un des etats voulait par une bizarrerie impossible a concevoir, troubler 1'ordre commun, en donnat le scandale de repudier cette forme rationnelle de gouvernement, le reste de la confederation pourrait le contraindre a respecter le traite par lequel il s'est lie pour toujours a conserver une constitution democratique. Ibid., 24 January 1848 (VIII.1.1849), 217. 6 Globe and Mail, 10 July 1997, Ai/Ag. 7 Edmund S. Morgan, The Second American Revolution,' review of Gordon S. Wood, The Radicalism of the American Revolution (New York: Knopf, 1992), New York Review of Books, 25 June 1992,23-5. 8 Giovanni Sartori, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes (New York: New York University Press, 1994), 89 (emphasis in original). 9 A.V. Dicey, An Introduction to the Study of the Law of the Constitution, loth ed. intro. E.C.S. Wade, London: Macmillan and Co., 1962), 124-5. 10 Bernard Manin, 'Checks, Balances and Boundaries: The Separation of Powers in the Constitutional Debate of 1787,' in Fontana, ed., The Invention of the Modern Republic, 33. 11 Lord Elgin to Lord Guy, 27 August 1849, in Doughty, ed., Elgin-Grey Papers, 2:452. 12 DLAUC, 23 May 1850 (IX.I.i85o), 178. 13 Hugh Cunningham, The Language of Patriotism/ in Raphael Samuel, ed., Patriotism: The Making and Unmaking of British National Identity, 3 vols. (London: Routledge, 1989), 1:66. Few Canadians spoke well of Paine, perhaps

Notes to pages 229-31 305 because he spoke so disparagingly of them: 'Britain may put herself to great expenses in sending settlers to Canada; but the descendants of those settlers will be Americans, as other descendants have been before them.' 'Letter to the Abbe Raynal, on the Affairs of North America: in which the Mistakes in the Abbes [sic] Account of the Revolution of America are Corrected and Cleared Up/ in Philip S. Foner, The Complete Writings of Thomas Paine, 2 vols. (New York: The Citadel Press, 1945), 1:258. 14 Louis Hartz, 'United States History in a New Perspective/ in Louis Hartz, The Founding of New Societies: Studies in the History of the United States, Latin America, Canada and Australia (New York: Harcourt, Brace and World, 1964), 85. 15 DLAUC, 23 March 1846 0/1.1846), 24 and 29 March 1845 (^.11.1844-5), 2577. 16 Hilary Wainwright, 'Across to London/ in Anthony Barrett, ed., Power and the Throne (London: Vintage, 1994), 147. 17 L'Action Nationale 13 (mai 1939), 377, and 53 (avril 1964), 695. 18 On Canadianizing the Crown, see David E. Smith, The Invisible Crown: The First Principle of Canadian Government (Toronto: University of Toronto Press, 1995), ch. 3. A study of honours and the reason for their abandonment after 1918 has yet to be published. 19 See Mark McKenna, The Captive Republic: A History of Republicanism in Australia, 1788-1996 (Melbourne: Cambridge University Press, 1996). McKenna discusses the anti-British phenomenon, but also seeks 'to challenge this onedimensional view of republicanism by acknowledging the hybrid character of republicanism in Australia/ 5. 20 Ibid., 260. 21 Walter Tarnopolsky, 'Multiculturalism - the Basic Issues/ in Manoly R. Lupul, ed., Ukrainian Canadians, Multiculturalism, and Separation: An Assessment (Edmonton: University of Alberta Press, 1978), 146. More recently, Susan Eng, an Ontario politician who refused to swear allegiance to the Queen, made the same point: The fact remains that there are a lot of people who see the insistence that the Crown have primacy over the symbols that they might hold dear, as a problem for them, that they don't find ... that they have a sense of belonging.' Canadian Broadcasting Corporation, Sunday Report, 21 April 1996. 22 Ged Martin, 'Freedom Wears a Crown: The Republican Non-Issue in Canada/ paper presented at the High Commission for Australia, London, September 1994, 21. 23 Martin, 'Freedom Wears a Crown/ 23. Of interest, the Angus Reid/Southam News Poll on 'Canadians' Attachment to the Monarchy/ 3 February 1996, found that while 'Quebecers ... remain the most in favour of abolishing Canada's monarchy connection' (67 per cent versus Ontario, where the figure is

306 Notes to pages 231-7

24

25 26 27

28

38 per cent), between January 1993 and January 1996 the percentage in favour of preserving the connection registered a proportionately larger increase in Quebec than elsewhere in the country. J.G.A. Pocock, 'States, Republics, and Empires: The American Founding in Early Modern Perspective/ in Terence Ball and J.G.A. Pocock, eds., Conceptual Change and the Constitution (Lawrence: University of Kansas Press, 1988), 68. In the cited paragraph, Pocock discusses the union of England and Scotland, 1707. Ibid. Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution/ Yale Law Journal 93 (1984), Lecture Two: 'We the People?' National Library of Ireland, ^94109 lii, 'Ireland's Request to the Government of the United States of America for Recognition as a Sovereign Independent State (Issued at the office of the Irish Diplomatic Mission, Washington, D.C., 27 October 1920).' The letter contained in 'the request' was addressed to 'Mr. President/ The Chesterton quotation is from Irish Impressions (London: W. Collins Sons, 1919), 205. Saskatoon Star-Phoenix 26 April 1997, A8. As of July 1996, fifty-two Heritage Minutes had been produced. They dealt, among other topics, with the achievement of responsible government, Aboriginal people, explorers, prejudice and tolerance, peacekeeping, disasters, as well as several firsts, including the first woman licensed to practise medicine and the first female member of Parliament. I wish to thank the Canadian Studies and Youth Program, Canadian Heritage, for this information.

Epilogue 1 Australia, Constitutional Convention, Transcript of Proceedings, 5 February 1998, 219. 2 The Canberra Times, 2 February 1998, i ('A historic moment if it all works out'). 3 See, for example, Constitutional Convention, Transcript, 16, 57, 200. 4 Ibid., 4. 5 The Australian, 24-25 October 1992, 21. 6 Constitutional Convention, Transcript, 218. 7 Ibid., 19; see also 87-8. 8 Ibid., 431-2. 9 Ibid., 2. 10 Ibid., 478. 11 Ibid., 402.

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Index

Aboriginal people, in Canada, 11618,136,177,190, 231; self-government of, 16, 24, 83,194 Accountability, principle of, 80, 90, 99 Ackerman, Bruce, 41, 51, 150 Act of Union (1841), 204, 205 Acton, Lord, 35, 47, 52 Adams, John, 37, 44, 49, 228 Agrarian republicanism, 26 Alberta, 100, no, 112-13, 122, 138 Alberta Court of Appeal, 128, 129 Amalgam method, 105 American Commonwealth, 115 American Influences on Canadian Government, 127 American Revolution: attitudes to, 61, 174; effect of, 44, 47, 65-8, 108; isolation of, 47-8, 178; and principle of representation, 96-7, 113, 263n.5 Appointment, principle of, 71, 72, 77, 163, 169, 207 Architecture, political symbolism of, 56-9 Aristocracy: institutional expression of, 70-4; principle of, 38, 40, 41, 49, 52, 59, 76, 77-8, 97 Aristotle, 39, 40

Atkinson, Michael, 116 Australia: and the British monarchy, 4-5, 13-14, 15, 19-20, 207, 208, 230; and the Constitutional Conference of 1998, 233-7; and the Constitutional Crisis of 1975, 4, 217, 235-6, 24On.2; constitutional development of, xi, 31, 101-2, 296-7n .72; constitutional features of, 16, 126, 139, 145, 228, 231, 237; contrasts and parallels with Canada, 25, 28, 146, 206, 207, 208, 216, 230; effect of geography on, 20, 32, 147, 224; federalism in, 111-12, 145, 146, 220-1; political culture and history of, 4, 5, 12-14, 19, 22-3, 24-6, 63, 111-12, 115, 184, 218, 230-1, 267n. 52; political parties in, 4, 5, 19, 218; Republican Advisory Committee of, 206, 209, 214, 216, 218, 233; republican debate in, 9-10, 14-20, 175, 176, 200-3, 205, 206-8, 216, 217-18, 230-1, 233-7; republican movement in, xii, xiv, 4-5, 24On.3; republican options of, 27, 38, 202, 210, 215-21, 231-7; Senate of, 171, 236, 28511.86; symbolism in, 216-17

34O

Index

Bouchard, Lucien, 135, 208 Boulton, Henry John, 222 Bourinot, Sir John, 63, 79, 80, 145, 146, 171 Bradford, Gamaliel, 133 Breton, Raymond, 21 British Columbia, 172, 232; parliamentary representation of, 100, 104, 108, 122, 138 British Empire, 30, 35, 46-7, 80, 160, Bagehot, Walter, 6-7, 12-13, 46, 47, 183-5, 188, 199-201. See also 133, 145, 146, 242n.11, 243n.22 Empire-Commonwealth Balance: constitutional theory of, 42, British imperialism: and Canadian 45-9, 5O, 52, 59, 64, 70, 71, 82; of nationalism, 26-34; collapse and government, 44-5, 71, 81, 222, withdrawal of, 9-10, 60; effects of 3O3n.61; institutional, 59, 75, 77-80, on Canada, 182-5; and imperial 163, 227-8; principle of, 11, 41, 76, sentiment in Canada, 12-14, 26, 115. 77, 162 See also British Empire; Symbolism Baldwin, Robert, 76, 79, 84, 85, 86-7, British North America Act (1867), 140, 229 164, 165-6, 205 Balfour Declaration (1926), 95 Broadbent, Ed, 122 Beer, Samuel, 109, 151-2, 159, 171 Brock, General Isaac, 61-2 Begin, Monique, 136-7 Brown, George, 86, 88-9, 103, 141, Belgium, as constitutional monarchy, 203, 204, 205, 298n.7 162,163,164-5, 2°3 Brunet, Michel, 30 Bennett, R.B., 28 Berger, Tom, 137 Bryce, James (Viscount), 16, 108, 115, Berton, Pierre, 123-4 156 Bureaucracy, role of, 85, 118, 132-3, Bevan, Aneurin, 121 136, 140 Bicameralism, 40, 43, 48, 69-70, 163, zz Burke, Edmund, 71 h164-5, 170, 171, Bilingualism, 135, 136, Burt, 176, Sir Francis, 217 191, 229. See also Royal Commission on Bilingualism and Biculturalism Cabinet government, 74, 85, 88-9, Bill C-69 (Canada), 105-6 99-100, 107, 111, 167, 213-14 Bill of Rights (Canada), 188 Cairns, Alan, 154, 193 Blair, Tony, 5 Canada: and aboriginal people, 16, Bloc Québécois, 177-8 24, 83, 116-18, 136, 177, 190, 194, Bond Head, Sir Francis, 108, 114, 115, 231; and Australia, 3, 14, 25, 28, 63, 123 146, 216, 219, 221-3, 224; constituBorden, Robert, 28, 206 tional evolution of, 8-9, 33, 65-91,

The Australian, 235 Australian Citizenship Act, 178 Australian Labor Party, 111-12, 218 Australian Republican Movement (ARM), 14-20, 175, 234-7, 244n.3O Authority, principle of, 90, 97, 174; and Canadian deference to, 122-7, 190

Index 341 115, 191-6, 204-8, 300n.25; constitutional issues in, 101, 160, 161, 171, 172-3, 191, 223-4; as a constitutional monarchy, 8-14, 20-6, 64, 95-108 , 110-19, 145, 201-5,219, 226, 233, 234; constitutional reform in, 3, 110-11, 139-43, 162, 192-6; and France, 3, 61, 68; and Great Britain, 10, 13-14, 28-33,184-5, 230; history and demography of, 21-34, 62-3, 104-5,114, 125, 147, 155-7, 205, 216, 224, 232; international recognition of, 10, 28, 30, 33, 35, 60, 160, 205-6; modern-day politics of, 34, 50, 62, 81, 84, 88-9, 136-7, 207-8, 226-7; national character of, 10, 27, 123-6, 132, 150-4, 179-86; nationalism and nationalist policies of, 27-36, 55, 79, 134, 182-5, 230-2, 247-8n. 69; national unity of, 84-5, 127, 159-60, 172-3, 232; political development of, 60, 65-91, 105, 108-11, 162-7, 184-5,187, 225-6, 228-31; political traditions and culture of, 11, 16, 20-2, 29-34, 37, 50, 59, 62-5, 98, 100-1,106,113-19; reform movement in, 13, 47, 65-8, 72-3, 75-6, 80, 87, 140-3; role of monarchy in, 15-18, 24, 26-7, 35; and the U.S., 3, 11, 27-8, 33-9, 61, 63-8, 82, 83, 86-7, 226-7, 274n.51. See also Cabinet government; Canadian Charter of Rights and Freedoms; Citizenship as participation, in Canada; Crown, the; Federalism in Canada; Government of Canada; Individual provinces and territories; Political parties; Religion; Representation; Republicanism in Canada

Canada: An Actual Democracy, 16 Canada Elections Act, 128 Canada First Movement, 184 Canada-Quebec Accord on Immigration, 177, 29on.12 Canadian Charter of Rights and Freedoms: and citizenship as participation, 16, 98, 118, 128, 140, 196; and constitutional minoritarianism, 141, 143; and effect on deference to authority, 123, 126; and entrenchment of civil liberties, xi, 189, 192, 193, 194-5; and federalism, 158, 223; as national symbol, 6. See also Courts The Canadian Citizen, 135 Canadian Citizenship Act, 175, 177, 186-7 Canadian Civics, 183 The Canadian Identity, 135 The Canadian Monthly, 224 Cape Breton, 68-9 Careless, J.M.S., 89 Cartier, George, 87-8, 102, 163 Cauchon, Joseph, 189 Charlottetown Accord, no, 116, 139, 148 Charter 88 (Britain), 6, 24in.8 Chateau Clique, 75, 40 Chretien, Jean, 105, 106, 131, 226-7 Citizens' Forum on Canada's Future, 135, 138, 140 Citizenship, concept of, 38, 39, 40, 41, 51-4, 174-5 Citizenship and Character Formation,

135 Citizenship as participation, in Canada: via direct democracy, 138-43; early concepts of, 179-86; and government, 120, 125-6, 132-7; modern

342 Index concept of, 186-96; via political parties, 127-32, 134-8, 232; symbolism of, 175-8 Clark, S.D., 190 Classical republicanism, 38-44, 48-51, 53, 54, 59, 74, 87-8 Coats, R.H., 22, 24 Cobbett, William, 26 Colley, Linda, 54 Collini, Stefan, 113-14 Commonwealth, 6, 30-1, 111, 174, 175, 186; republican precedents in, 208-24. See also Empire-Commonwealth Compound republic, theory of, 144, 145, 146, 147 Confederation, 83, 109, 147, 150-1, 154, 156-8, 28in.43; and Confederation debates, 149, 150, 164, 165, 166, 168 Congressional Government, 132 Conscription crises, in Canada, 184, 187 Consensus Saskatchewan, 138-9 Conservatives, 35, 138 Constitution Act (1867), 59, 149, 155, 157-8, 161, 169-70; (1982), 148-9 Constitutional Act (1791), 68-74, 77, 80, 82, 205 Constitutional Amendment Bill, 7 Constitutional balance, principle of, 60, 73 Constitutional Convention, Australia (1998), 233-7 Constitutional Crisis of 1975 (Australia), 217, 235-6 Constitutional engineering, 10-12, 40, 42, 43, 51, 68-9, 70, 205 Constitutionalism, western notions of, 41-2

Constitutionalism and the Separation of Powers, 41 Constitutional minoritarianism, 141, 143 Constitutional monarchies, xii, 7-14, 18, 19, 20-6, 132, 207, 210, 219, 226, 233, 234; compared with republican system, 64, 120, 121, 124, 126, 127, 132, 133-4, 136, 153, 274n.51; and participation, 95-6, 97, 98-101, 1028, 116-19; and provincial autonomy, 109-16, 145. See also Crown, the Constitutional Odyssey, 196 Constitution of 1688, 51, 52 Constitution of 1791, 75 Conway, John, 17-18 Costello, J.A., 31, 212 Le Courier de Quebec, 74 Courtney, John, 105 Courts, in Canada, 16, 106-7,128,129, 161, 192-3, 196, 273n.30 Crown, the, xii, 24, 42, 77, 218-19; powers and prerogatives of, 13-14, 19, 42-9, 70-4, 82-6, 90, 119, 120, 124, 168, 203, 207 Dafoe, J.W., 160 Davis, T.C., 172 Democracy: and citizen participation, 101, 116, 129-31, 138-43, 189-90; contrasts in, 18-19, 26, 63, 108, 115, 126-7; institutional expression of, 59, 70-4; as principle of government, 38, 40, 41, 48-9, 74, 97 Denison, Colonel George T., 34, 114 Devine, Grant, 139 Diamond, Martin, 150 Dicey, A.V., 11-12, 227 Diefenbaker, John, 26, 27, 141, 179, 188, 193-4

Index 343 Discourses, 42 Disraeli, Benjamin, 46-7 Dissolution, 145 Dominion-Provincial Conference (1927), 170 Dorion, A.A., 85, 87 Dorion, J.-B. Eric, 165 Dualism, 20-1, 69, 156-8, 162-3 Dual office holding, 157-8 Duffy, Dennis, 187 Duffy, James, 210, 212 Duncan, Sara Jeanette, 26 Durham, Lord. See Lord Durham's Report Elazar, Daniel, 49, 64, 120, 150 Elections, in Canada: and the elective principle, 63, 74-5, 78, 87, 88-9, 90, 262n.79; and the Electoral Boundaries Readjustment Act (1964), 104; and electoral reform, 117, 121-2, 128-30, 134, 138-43; politics of, 127-8, 129-32. See also Representation Elgin, Lord, 85, 199-200, 201, 204, 210, 219, 225, 228-9 Empire-Commonwealth: and Canadian citizenship, 174, 175, 183-5, 188; and Canadian nationalism, 278, 30-1, 33, 35, 60, 80, 160, 205-6. See also British Empire; Commonwealth; British imperialism L'Enfant, Pierre Charles, 152 English Commonwealth, 43, 44, 45, 51 The English Constitution, 6, 46-7, 33 English-speaking Canadians, and symbols of nationalism, 176, 182, 184-5 Entrenched rights, 142,143,189-90, 192

Equality, principle of, 106-8 Ethnicity, in Canada, 179, 188, 190, 194, 29on.17 Evans, Harry, 41, 218 Executive power: in constitutional monarchies, 14, 18-19, 43 80-1, 856, 115, 116, 119, 132, 157, 160, 228; in republican system, 10, 19-20, 38, 40, 48, 73, 87, 119, 163, 228 Family Compact, 75, 76, 140 Federal districts, 154 Federalism, contrasting systems of: Canadian vs American, xii, 20, 39, 69-70, 82-3, 89-90, 144-61, 163, 16670, 172, 173, 189, 191, 221-4, 227, 231-2, 28onn. 35, 37; Canadian vs Australian, 20, 63, 101-2, 170-1, 231 Federalism in Australia, 63, 101-2, 111-12, 146 Federalism in Canada: attitudes to, 150-1, 166-7; constitutional development of, 84, 89-90, 106, 154-67, 189, 192-6, 227, 229, 231-2; division of powers in, 16, 62-3, 109-10, 1ll, 148-51, 154, 160-1, 166, 168-73, 222 223; modern-day nature of, 221-4; national institutions of, 171, 191-2, 229; and principle of representation, 159-67, 191-6; problems of, 16, 39, 62-3, 165, 167-73, 229; provincial identities in, 57-9 Federalism in the United States, 49, 56, 69-70, 97-8, 109-10, 120-1, 144, 166, 227; theory of, 146-54 Federalist Papers, 52, 146-7, 166 Federal-provincial relations, 158, 171. See also Federalism in Canada A Federal Republic: Australia's Constitutional Si/stem of Government, 101

344 Index Fink, Z.S., 42, 43 First World War: and effect on citizenship in Canada, 184, 292n41; and post-war republican growth, 10 Fisher, H.A.L., 44 Fleming, Sandford, 118-19 Forsey, Eugene, 8, 162, 204 Foster, George, 170 Fox, Charles James, 70, 71, 72, 73 Fragment theory, 62 France, 3, 87, 96; republicanism in, 11-12, 14, 35, 52-3, 199-200 Franks, C.E.S., 101, 102, 116 Fraser, Andrew, 221 Fraser, John, 127 French-Canadian democratic movement, 229 French Revolution, 37, 44, 47, 54, 174, 203 French-speaking Canadians, 21, 30, 69, 95-6, 144, 162; and symbols of nationalim, 176-8. See also Quebec Galligan, Brian, 101, 126, 145, 146, 171, 220 Gandhi, Indira, 214-15 Gardiner, James, 172 Gibbins, Roger, 167-8 Gibbs, Sir Harry, 220-1 Gillis, John, 22 Gladstone, W.E., 46-7 Glazer, Nathan, 191 Glenelg, Lord, 78 Globe and Mail, 15, 27, 176, 231 Glorious Revolution of 1688, 42, 44, 47, 52 Goot, Murray, 25 Gourlay, Robert, 66 Government, principles of, 38-9, 40,

41, 49, 59, 97. See also Balance; Mixed government Government of Canada, structure and institutions of: development of, 70-4, 77-80, 105, 116-19, 124-5, 151-4, 191, 228-9; distrust of, 140, 141; and established authority, 5960, 62, 65-8, 77; legitimacy of, 120, 124, 196; and responsible government, 69-74, 90-1. See also Canada, political development of; Constitutional engineering; Federalism Government of India Act (1935), 221 Granatstein, J.L., 187 Grant, George, 33-4, 182 Grassroots movements, 130, 140, 181 Great Britain: constitutional principles of, xii, 42, 44, 45-8, 51, 66, 70-4, 85, 118, 121; constititutional reform in, xi, 6, 13-14, 43-6, 81-2, 95, 108, 161, 24in.8; imperialism of, 9-10, 200-1, 205; monarchy in, 5, 6, 1214, 203, 229-30; political structure and culture of, 11-12, 43-4, 66, 81, 88, 99, 135; relationship with Australia and Canada of, 3-4, 10, 13-14, 28-33, 184-5, 230 and republicanism, 3, 12, 38-9, 43-4, 46, 47, 65-8, 70, 114-15, 199 Great Reform Act (1832), 95, 161 Green Party, 130 Grey, Earl, 114, 199, 204, 207, 218-19 Hansen, Marcus Lee, 22 Harper, Stephen, 100 Harrington, James, 43, 228, 25on.22 Hartz, Louis, 62, 126, 229 Head, Sir Edmund, 164-5 Hereditary titles, 71, 76, 77-8 Hincks, Francis, 85, 86, 105, 135-6, 204

Index 345 Hirst, John, 216, 217 Hitchcock, Henry-Russell, 56 Hobsbawn, Eric, 3, 23, 47 Hodgins, Bruce, 21-2, 24 Hofstadter, Richard, 24 Horowitz, Gad, 62 House of Commons, in Canada: electoral reform of, 122; functions of, 133-4; politics of, 128, 130, 131; representation in, 158, 167. See also Parliament of Canada Howard, John, 4, 233, 234, 237 Howe, Joseph, 157 Immigration, to Canada, 62, 104, no, 112; after Second World War, 186-7; and Canada-Quebec Accord on Immigration, 177; and effect of citizenship policies on immigrants, 188-92; influence of religion on public attitudes to, 180-2 Imperialism. See British imperialism The Imperialist, 26 India, xii, 55; federalism in, 213, 220, 221; republican nature of, 9, 30-1, 211-15, 216, 219, 220, 224, 242n.16 India's Constitution in the Making, 213 Information, dissemination of, 153-4. See also Public opinion Initiative and Referendum Act (1916), 138 Innis, Harold, 27-8, no Institutional balance, 8, 113-14. See also Constitutional balance Intergovernmental relations. See Federal-provincial relations Internationalism, 184 Interprovincial Conference (1887), 164 The Invention of Tradition, 54

Ireland: and the Commonwealth, 33, 212; immigrants from, 22-3; federalism in, 221; representation principle in, 96, 262n. 2; republican nature of, xii, 9, 31, 203, 208-11, 214, 215, 216, 224, 232, 235 Jackson, Andrew, 74, 114, 115, 229 Jefferson, Thomas, 141, 147 Jenson, Jane, 129, 130, 136 Johnson, Paul, 38, 54 Judiciary. See Courts Keating, Paul, 4, 5, 9, 18, 19, 218, 233 Keenleyside, Hugh, 192 Kennedy, W.P.M., 160 Kerr, Sir John, 4, 217, 235-6 Kilgour, David, 131 King, William Lyon Mackenzie, 28, 80, 155, 160, 206 King-in-Parliament, constitutional theory of, 42, 45, 48 Kohn, Leo, 203, 209 Kymlicka, Will, 166-7, 194 L'Action Nationale, 229-30 Lafontaine, L.-H., 87, 140 Lasch, Christopher, 195 Laurendeau, Andre, 83, 179, 188, 190 Laurier, Sir W., 205, 206, 207 The Law of the Constitution, 227 Legislative Assembly of the United Canadas (1855), 55 Legislative Councils, in pre-Confederation Canada, 69, 70-2, 73, 79, 81, 82, 87, 90, 225, 228; reform of, 74-8, 168-9 Liberals, in Canada: governments, 26-7, 33-4, 35, 122, 131; political party, 128, 131, 157, 177

346 Index Lijphart, Arend, 168 Lipset, Seymour Martin, 123 Lord Durham's Report, 60, 65, 80-90, 109 Lortie Commission, 117 Lower, Arthur, 15, 126-7 Lower Canada, politics of, 13, 47, 74-5, 76, 78, 79, 80-3 McAleese, Mary, 211 Macaulay, Catharine, 14, 47, 95; and description of republicanism, 11, 12, 40, 47, 113, 148, 226, 232 Macdonald, John A., 85, 86, 126; and issues of federalism, 148, 149, 150, 157, 162-3, 166, 168 McGarvie, Richard, 202-3, 213, 220, 236, 237 McGee, D'Arcy, 34 MacKay, R.A., 89 McKenna, Mark, 230 Mackenzie, William Lyon, 55, 177; radicalism of, xii, 38, 67, 75-6, 79, 80, 179, 180, 224 McKibbin, Ross, 135 MacLean, M.C., 22, 24 MacNab, Sir Allan, 229 McNaught, Kenneth, 31, 62-3, 132, 158 Madison, James, 146-7, 166, 167 Maitland, Sir Peregrine, 65-6 Majoritarianism, 181, 189-90 Manitoba, 104, 105, 108, 138 Mann, Horace, 182 Manning, Preston, 100, 139-41, 223 Mansergh, Nicholas, 212 Maritimes, the, 105, 134, 157, 167 Martin, Ged, 231 Martin, Paul, 186 Massey, Vincent, 143

Massey Commission, 32 Meech Lake Accord, 116, 139, 148 Meighen, Arthur, 28 Merritt, W.H., 90 Methodist Church, in Canada, 180-2 Mill, John Stuart, 122 Mills, David, 148 Milton, John, 37, 43 Minimalist republicanism, 27, 38, 202, 210, 216-21, 231, 232, 234 Minorities. See Special interest groups Mixed government, theory of, 40, 412, 48-51, 73, 74, 97, 115 Monarchy, principle of, 38, 40, 41, 467, 49, 59, 70, 97, 168; definitions and distinctiveness of, 8-14, 20, 24, 26 Monarchy in Canada: and federalism, 172-3; institutional expression of, 70-4; and principle of participation, 95, 101-2; and relationship to citizenship, 174, 195, 196. See also Australia, and British monarchy; Great Britain, monarchy in Monroe Doctrine, 61 Morgan, Edmund, 97, 227 Morin, A.-N., 105 Morton, W.L., 111, 135 Mowat, Oliver, 109 Multiculturalism: in Australia, 230-1; in Canada, 189, 194-5, 231 Mulvey, Thomas, 175 Municipal affairs. See Self-government Munro, William Bennett, 127, 137-8 National Citizens' Coalition, 128 Nationalism, 47; in Canada, 82, 123-4, 179-88, 192, 205-6, 229, 294n.49 Nationalities Branch (Canada), 185-6, 293n-47

Index 347 National Liberal Federation, 143, 277n.8o National Resources Mobilization Act (1940), 185 National unity, in Canada: debate on, 161,176-8,194, 224, 230-2; promotion of, 176,184-5,191-2,196; referendums on, 139,177. See also Charlottetown Accord; Meech Lake Accord Neatby, Hilda, 32 Negotiating the Past, 177 Nehru, Jawaharlal, 30-1, 214 Neilson, John, 72, 88, 226 Neo-classicism, 115 New, Chester, 75 New Brunswick, 68-9,157 New Democratic Party, 122,128 Newfoundland, 108, 232 New Zealand, 201, 207, 216 Ninety-Two Resolutions (1834), 74, 82, 204 Noorani, A.G., 214-15 Norman, Wayne, 194 North, Lord, 47 North America, historical development of, 22-6 North-Western Territory, 148,155 North-west Ordinance (1787), 51 North-west Territories, 108, no, 232 Nova Scotia, political development of, 66, 68, 69, no, 115,156,157,163, 172 O'Brien, Conor Cruise, 6 Oceana, 43 Official Languages Act (1969), 188-9 Ogden, John Cosens, 61 Ontario, 129,134; and federalism, 150, 156,157,163,166; parliamentary

representation of, 104, 105,165-6, 167 Onuf, Peter, 147 Ostrom, Vincent, 144 Paine, Thomas, 72,116,155, 229 Pal, Leslie, 185-6 Papineau, Louis-Joseph, xii, 67, 72, 75-6,79, 80, 86,104,226, 228 Parkman, Francis, 35 Parliament Act (1911), 46 Parliament of Australia, 99,111-12. See also Australia Parliament of Canada: evolution of, 69-74, 81-91; politics of, 120,121, 127-43, !53~4/195-6; powers of, 78, 86,101,111-13,n6,118-19; reform of, 64,142-3,163; representation in, 100,103-13,117, 118,122,138,157, 158,165-6,167; system of, 98, 99100,103-5,11G/ 1:L9- See also Senate of Canada Parliament of Great Britain: powers of, 48, 51, 66, 85,118; reform of, 6, 108, 24in.8; system of, 81, 88, 99. See also Great Britain Parliamentary republics, xii, 10, 20, 37, 201, 215. See also India; Ireland Participation: and citizenship issues, 193-4,196; politics of, 80, 98; principle of, 11,53-4,66,102,225,232. See also Citizenship as participation Parti quebecois, 173, 231, 287^95 Partisanship, in Canadian politics, loo-i, 132 Pathasarathy, Seetha, 215 Patriotism. See Nationalism Patronage, 136-7 Pearson, Lester, 32 The Persons Case, 143

348 Index Petroleum Administration Act (1982), 18 Pitt the Younger (William), 71, 72, 77-8 Pocock, J.G.A., 37, 49 Policing: in Canada, 124-6; in the United States, 124,125,126 Political parties, in Canada: discipline of, 130-2,133-4,136; and electoral reform, 122,128-30,134; and federalism, 171; parliamentary domination of, 120,127-43, 272n.25_ See also Individual political parties Polybius, 37,40 Pope, John Gray, 150 Pope, Joseph, 14,150 Popular constitutionalism, 79, 90 Popular sovereignty. See Sovereignty Portland, Duke of, 77, 83-4 Prang, Margaret, 184 Prasad, Rajendra, 214,215 Prince Edward Island, 105, 232 Progressive Conservatives, 100,128, 141 Progressives, 99,141 Proportional representation, 122 Protectorate, the, 43 Protestantism, in Canada, influence of, 179-82 Provinces of Canada: autonomy of, 109-11,115-16,138-9,145,151, 157,158,166,171-3, 282n.52; and parliamentary representation, 100, 103-5,1Q8,112-13,1:17/ n8/122, 138,157,165-6,167. See also Federal-provincial relations; Individual provinces Public opinion, in Canada: influence of religion on, 180-2; and the political process, 89,130-3,153-4,167

Pugin, E.W., 58 Puritans, 43, 44, 85-6 Quebec: ethnic nationalism of, 139, 176-8,190,194,199, 231; and federalism, 134,150,165-8, 232; Parti quebecois in, 173, 231, 287^95; political development of, 20, 21, 35, 58, 67, 68, 72, 82,115,135,156,157, 163,166-8, 205,208, 284^73; and representation in Parliament, 103, 104,111,112,115,134,167; sovereignty of, 96,101,172,173,177-8, 263n_3. See also French-speaking Canadians Quebec Act (1774), 205 Quebec Conference, 157,168 Quebec Gazette, 72 Queen Victoria, reign of, 13, 95,11314. See also British imperialism Quellet, Fernand, 72 Quiet Revolution, 33,192 Radicals and reformers, 13, 47, 65-8, 72-3, 75-6,80, 87,140-3. See also Brown, George; Mackenzie, William Lyon; Papineau, Louis-Joseph Ratnapala, Suri, 218 Rau, B.N., 213-14 Rebellion Losses Bill, 85,168-9 Rebellions of 1837,38,64,70-1,78-80, 228 Recall, 121 Redistribution, 102,103,104,105-7, 117-18. See also Elections; Referendums Redistricting, 102 Referendums: in Australia, 237; in Canada: 138-43,145 Reform Act (1832), 45, 81

Index 349 Reform Party, 128, 139-43, 275-6n.71 Reform tradition, in Canada, 139-43 Regionalism, in Canada, 168, 177, 199, 230 Reid, Escott, 16-17, 29, 32, 206, 212, 244-5n. 37, 247n.68 Religion, in Canada: and the influence of Protestantism, 179-82, 188; and the Roman Catholic Church, 75, 83, 166 Report of the Constitution Review Group (Ireland), 209-10, 211 Report of the Mackenzie Valley Pipeline Inquiry, 137 Report of the Task Force on Canadian Unity (Pepin-Robarts Report), 161 Report on the Affairs of British North America. See Lord Durham's Report Representation: in Canada, 89, 95-6, 102-8, 110-11, 116-20, 131, 161-3, 167-9, 266n.3o; principle and theory of, 41, 46, 48-50, 54, 79-80, 89, 113, 140-1, 225 Representation by population (repby-pop), 89, 103, 104, 105, 110-11, 162-3, 167-8. See also Brown, George Representative government, 42, 69, 83. See also Responsible government Republic Advisory Committee (Australia), 233; Report of, 218 Republicanism: aesthetic of, 53-9; classical foundation of, 37-43; defined, 8-14, 20, 40, 48-9, 50-1, 112, 124, 208; development in Western political thought, 42-59; models and comparisons of, xii, 8-12, 19-20, 38, 51-3, 201-4, 208-24, 2347; in the North American setting,

20-6; role of president in, 209-11, 213, 214-17, 219-20, 231, 234, 236; representation in, 95-8, 102-3, 153-4; theory of, 10-11, 21-6, 42, 48-53, 61, 82-3, 141-3, 156, 184, 199-202, 276nn. 74, 77. See also Australia; India; Ireland; Republicanism in Canada; Republicanism in the United States. Republicanism in Canada: attitudes to, 9, 46, 60-8, 74-80, 84-91, 165, 172, 173, 175; general absence of, xii-xiv, 3-4, 7, 10, 12-14, 51, 16-18, 20-36, 115-16; impact of U.S. model on, 20-26, 34-36, 49-50; nature of, 221-4, 225-8, 230-2; regionalism of, xii, 38, 64, 67, 70-2, 75-6, 78-80, 86, 104, 199-202, 204, 226, 228, 229 Republicanism in the United States: aesthetic of, 53-7, 59, 147, 174; and Antifederalists, 97-8, 34, 144; Canadian attitudes to, 173, 225-7, 228; model of, xi-xii, 8, 20-6, 34-6, 38, 51-3, 64, 74, 89, 97-8, 120, 173, 187, 213; system of compared with constitutional monarchy, 8-14, 97, 120, 121, 124, 126, 127, 131, 132-3, 134,153; symbols of, 56-7, 59, 70, 147, 151-3; theory of, 48-51, 163, 189, 191-6, 215, 221, 226-9, 232 Responsible government, in Canada: development of, 71, 72, 74, 76, 8590, 108, 109, 120, 127, 133, 163; and Lord Durham's Report, 80-90; principle of, 65, 78-80, 85, 140 See also Self-government, in Canada Riker, William, 151 Robertson, Gordon, 17 Robinson, Mary, 211, 235 Romney, Paul, 112

35O

Index

Rosanvallon, Pierre, 37 Ross, George, 182 Rouges, the, 67 Royal Canadian Mounted Police. See Policing, in Canada Royal Commission on Aboriginal Peoples (RCAP), 116-18, 136; Report of, 116-18, 158 Royal Commission on Bilingualism and Biculturalism, 136, 185, 188. See also Bilingualism Royal Commission on DominionProvincial Relations (Rowell-Sirois Commission), 172 Royal Commission on Electoral Reform and Party Financing, 134 Royal Commission on Status of Women (RCSW), 136-7 Royal commissions, 136-7 Rump parliament, 43 Rupert's Land, 148, 155, 232 Russell, Lord John, 86, 157, 199, 200 Russell, Peter, 196 Ryan, Claude, 69 Ryerson, Egerton, 74, 180 St Laurent, Louis, 33, 172,187 Sartori, Giovanni, 38, 48, 53, 227,249n.4 Saskatchewan, 112, 138-9; and parliamentary representation, 104, 105, 107, no, 122 Scott, F.R., 184, 185 Seale, William, 56 Secession movement, in Canada, 172, 173 Second World War: effect of on Canadian citizenship, 185-6, 187-8, 192; and post-war republican growth, 10

Sectionalism, 113 Self-government, in Canada, 83-4, 105, 108-11, 113, 117, 147. See also Responsible government Sellers, M.N.S., 54 Senate of Canada: and federalism, 165, 167-73; and principle of representation, 89, 105; reform of, xi-xii, 8, 106, 145, 151, 167-73; representation in, no, 117, 168, 171; role of, 31, 69, 71-2, 131, 228 Separation of powers, concept of, 42, 44, 48, 70-4, 89, 126 Settlement of 1688, 45, 81 Sharman, Campbell, 145,219,221-2 Shklar, Judith, 187, 189, 191 Shotwell, James T., 182 Simcoe, John Graves, 23, 76-7, 84 Smith, Arnold, 32 Smith, Goldwin, 155, 156 The Social Credit Manual, 181 Social Credit Party, 141 Sovereignty, 48-9, 53, 120, 161, 163, 225; Canadian attitude to, 108, 149-54, 158-9; and the Canadian Charter of Rights and Freedoms, 193, 207; contrasts in, 200, 203, 20 and the Reform Party of Canada, 140-1. See also Quebec Special interest groups, in Canada, 72, 73, 128,130, 136-7, 140, 171, 189-90, 191; and the Charter of Rights and Freedoms, 193, 194-5 Spicer, Keith, 135 Spirit of the Laws, 52 Stacey, C.P., 184 Statute of Westminster (1931), 28, 80, 206 Stephen, James, 73 Stockmar, Baron, 46

Index Supreme Court of Canada, 106-7, 129, 192-3, 273n.30. See also Courts Supreme Court of Ontario, 129. See also Courts Symbols and symbolism: of Canadian citizenship, 176-9; of Canadian identity, 5, 17-18, 26, 27, 54, 79, 176-7, 183, 253n.61, 288n.10; of the Canadian constitution, 84, 228; of monarchy, 5-7, 30-1, 46-7, 59, 124, 207-8, 228, 229-30, 231, 24in_9; of Parliament, 54, 57-8, 59, 228, 229, 230; public attitudes to, 124, 152-4, 160-1; of republicanism, 35-6, 51, 54, 55, 56-7, 59, 152-4, 232 Tache, Eugene, 58 Tarnopolsky, Walter, 231 Taylor, C.J., 177 Taylor, Charles, 208 Temples of Democracy, 56

Thompson, E.P., 35, 44, 66, 67, 113 Tocqueville, Alexis de, 204 Tonge, Cottnam, 66 Toward a More Responsible Two-Party System, 132-3 Triple-E Senate (Canada), xi-xii, 78, 106, 168. See also Reform Party; Senate of Canada Trudeau, Pierre, 99, 188-9, 223Tully, James, 194 t4 Turgot, [Anne Robert], 52 Turnbull, Malcolm, 205 Tweedsmuir, Lord (John Buchan), 29 Unicameralism, 83, 1ll, 163, 164-5, 171, 228 Union Act, 65 United Canadas, politics of, 78-90,

351

95-6, 103-4,121,152-4,162~3,172, 204, 222, 228 United Church of Canada, influence of, 181-2. See also Religion United Empire Loyalists, 64 United Farmers of Alberta, 99-100 United States: and Canada, 3, 11, 22-4, 32, 35, 132-3, 224; and citizenship issues, 174, 178, 179, 182, 187, 189; constitutional evolution of, 10, 41-53, 56, 59, 64, 82, 85, 88, 89, 95-8, 1O2-3, lO9-lO, Il6,

121, 147,

149,

150, 158, 214; federalism in, 87, 147-53,191; government in, 88, 89, 102-3,118,119, 133, 147; politics of, 53-4, 62, 108; and principle of representation, 53, 95-6, 97, 98, 131; Senate of, xi-xii, 151, 228; Supreme Court of, 103, 107. See also American Revolution; Republicanism in the United States Upper Canada, 47, 75-9, 83 Upper chamber, role of, 72, 75, 78, 90, 165, 168-73, 285n. 83 Viger, Denis-Benjamin, 38, 72, 75, 152-3 Vile, M.J.C., 41, 42 Vipond, Mary, 182 Voting, 121-2; and voter turnout, 107-8. See also Citizenship as participation Wakefield, Edward Gibbon, 114, 153, 205 Wallot, Jean-Pierre, 63 Walzer, Michael, 195 War Measures Act (1970), 132 Watson, Patrick, 232 Wentworth, Sir John, 65-6

352 Index Western Canada, 100, 131, 134, 138, 172. See also Individual provinces Wheare, K.C., 149, 170, 221 White Paper on Indian Policy, 190 Whitlam, Gough, 4, 217, 235-6 Wilson, James, 97 Wilson, Woodrow, 132 Winterton, George, 216-17, 220, 221 , 301n.43

Wood, Gordon, 97 World Wars. See First World War; Second World War Wright, Tony, 1ll Yukon, the, 110 Zines, Leslie, 206