The Charter Revolution and the Efficient Part of Canada’s Constitution

HomeArticlesThe Charter Revolution and the Efficient Part of Canada’s Constitution

Ted Morton and Rainer Knopff’s  2000 Charter Revolution and the Court Party[1] was an academic blockbuster when it was published and stands today as one of the signal contributions to the debate about the institutional and cultural consequences of the Charter and the larger trajectory of Canadian constitutionalism. The book is written in an argumentative and at times playful style, pointing out the ironies in Court Party politics.  For example, the authors point out how charter members of the post-materialist left, unable to raise money from the members of the civil society on whose behalf they are supposedly campaigning, would take money from the very governments whose policies they were challenging.

Among the book’s admirable qualities is its ability to situate the constitutional law dimension of the Charter Revolution in a larger cultural and political environment that was taking shape in Canada since the 1960s. In so doing Morton and Knopff gesture toward a regime perspective on Canada, an analytic lens that highlights how citizen attitudes and character interact with regime principles and institutions, each shaping and responding to the other. As a result, they persuasively show that deeper political concerns drive Charter decision-making, not the cold mechanical logic of legalism which is customarily cited to support the legitimacy of judicial review.

In other words, The Charter Revolution and the Court Party is a study in a form of deception. Sophisticated elites pretend one thing but intend another. They seek the remaking of Canadian politics and society along left-postmaterialist lines but shroud this project in the judicial enforcement of entrenched Charter rights, most of them bearing a resemblance to classic civil liberties with roots extending to Magna Carta. What appears as a legal project is really a political project.

This article is a comment on that fundamental thesis, suggesting that a subtle but important dissimulation operates to underwrite the Charter project. It has to do with how the democratic masses must be trained and educated while those same masses are led to believe that they are sovereign. The Supreme Court itself has done its part in advancing the myth that in Canada the people are sovereign. In Sauvé v. Canada (Chief Electoral Officer),[2] the issue was whether the denial of the franchise to persons incarcerated for indictable offenses was contrary to s. 3 of the Charter which guarantees to citizens the right to vote. Chief Justice McLachlin for a narrow majority held that the restrictions were unconstitutional. Not only was the denial a failure to recognize the dignity of the individual so affected (the Court invokes dignity a lot these days), but s. 3 is a special, fundamental right – “one of the most fundamental rights guaranteed by the Charter”.[3] Not only is it not subject to the s. 33 notwithstanding clause, but the right to vote is the crucial link between the sovereign people and the elected representatives. Underscoring the fundamental character of the right to vote are these remarks:

“In a democracy such as ours, the power of lawmakers flows from the voting citizens, and lawmakers act as the citizens’ proxies.  This delegation from voters to legislators gives the law its legitimacy or force.  Correlatively, the obligation to obey the law flows from the fact that the law is made by and on behalf of the citizens.  In sum, the legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote.”[4]

The right of all citizens to vote, regardless of virtue or mental ability or other distinguishing features, underpins the legitimacy of Canadian democracy and Parliament’s claim to power.  A government that restricts the franchise to a select portion of citizens is a government that weakens its ability to function as the legitimate representative of the excluded citizens, jeopardizes its claim to representative democracy, and erodes the basis of its right to convict and punish law-breakers.[5]

In Sauvé, the majority comes very close to articulating a theory of popular sovereignty that renders Canada a republic, not a constitutional monarchy. Canada, of course is in the formal constitutional sense a constitutional monarchy. The Chief justice must be assumed to know this. In the case of the incapacity or absence of the Governor General, the Chief Justice of Canada can execute certain duties in his place. The Constitution Act, 1867 declares that Canada shall have a constitutional similar in principle to that of the United Kingdom, and that, according to s. 9, “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.” Contrary to the architecture of the United States Constitution, wherein the legislative power is described before the powers of the executive and judicial branches, the Dominion’s executive power in the 1867 Act comes first.

What is the Chief Justice up to in Sauvé? I suggest that she is engaging in a subtle deception. She says that sovereign power comes from the people, and by extension that voting is a fundamental right that cannot be limited for such trifling reasons as underscoring society’s desire to bolster obedience to the law or to punish incarcerated criminals. But she knows that in the formal, legal sense, sovereign power in a constitutional monarchy flows from the executive. She knows also that the courts are the guardians of the Constitution and the judicial review places the courts above legislatures. After all, in this very case the representatives of the sovereign people have passed a law expressing a will to limit the franchise – for the purpose, by the way, of enhancing its importance, not depreciating its importance – but the Supreme Court proceeds to strike it down. I suggest that she is making a key distinction between the efficient and dignified parts of the Canadian constitution.

The language of efficiency and dignity comes from Walter Bagehot’s The English Constitution. In that book he argues that the monarchy was the dignified part of the constitution but the House was the efficient part. He further argues that the dignified part is necessary to curry the support of the ignorant, newly enfranchised masses, even while England was effectively becoming a republic. In Canada’s case, the Chief Justice, ignoring the monarch altogether, suggests that the legislature is the dignified part of the Canadian constitution, while the courts are the efficient part. She takes Bagehot to a new, more modern plane, suggesting that this country is a post-materialist republic resting on the continuing illusion that the legislature is where the action is. The movement of efficient power from the legislature to the courts is a sophisticated exercise of partisan realpolitick.

Constitutional Gaps, Embellishments, and Deceptions

The usual way to describe a constitution is as a set of rules defining the game of politics. The rules stipulate who is in control, the powers of the various departments and orders of government, and fundamentally the relationship between government and the people. The overriding ideas here are clarity and coherence – fundamentally, rationality. What is left to judgment is the application of the rules to concrete cases that may or may not have escaped the intentions of the framers of the original settlement. Constitutionalism, in the received view, is the belief in pervasive, coherent, tractable constitutional order. North Americans believe that the texts of entrenched documents manifest that order. But constitutions are more than this. This section explores two senses in which a constitution is to be understood in subtler terms.

First, a tradition of thought holds that constitutions are not rational plans for a regime, but rather are complex, particular, and organic collections of habits, images, and institutions one of whose purposes is to curry the support and affection of citizens. In his Reflections on the Revolution in France, Edmund Burke excoriated the instigators of the French Revolution for their ill-fated reduction of political action to abstract, rational calculation. Finding irrational prejudice everywhere, the revolutionaries logically resorted to violence to make out of whole cloth a regime conforming to highly intellectualized designs. Burke favoured preservation over destruction, on the principle that traditions have stood the test of time because they reflect something deep and salutary in human nature. Humans are not simply rational calculators of interest; they live by sentiment and affection, by prejudices whose goodness is not premised on abstract explication.

What follows from this is a theatrical, ornamental account of the constitution. Rational plans do not foster affection.  Humans move on the basis of symbols and images. Constitutionalism is partly dramaturgical. Decrying the revolutionary destruction of the French monarchy, Burke writes:

“All the pleasing illusions, which made power gentle, and obedience liberal, which harmonized the different shades of life, and which, by a bland assimilation, incorporated into politics the sentiments which beautify and soften private society, are to be dissolved by this new conquering empire of light and reason. All the decent drapery of life is to be rudely torn off. All the superadded ideas, furnished from the wardrobe of a moral imagination, which the heart owns, and the understanding ratifies, as necessary to cover the defects of our naked shivering nature, and to raise it to dignity on our own estimation, are to be exploded as ridiculous, absurd, and antiquated fashion.”[6]

In this view, constitutions rest not on rational assent but on a dignity dependent on public affection, and affection in its turn depends on the excitement of public imagination. Thus the constitution must contain a mystique sufficient to garner reverence.

A second sense in which the constitution is different from a rational plan for politics is developed in 1989 study published by Michael Foley which argues that the key element in any mature constitution is a basic silence or obfuscation. In The Silence of Constitutions: Gaps, “Abeyances”, and Political Temperament in the Maintenance of Government,[7] there are some things that constitutions studiously avoid, and this is because those things are intractable, divisive, or dangerous. Foley describes these gaps, obfuscations, and avoidances as abeyances. He offers two case studies in his book. The first concerns the 17th century English struggles between the King and Parliament and how the basic question on where sovereign power lay was better left unasked. The question should have been left unasked because it was essentially unanswerable in any way short of violence. Royal prerogative powers and the need for wide executive authority in times of emergency are impossible to capture in legal language. Yet the decent regime is one characterized by the rule of law and the limitation of personal power. How can law encompass what cannot be literally encompassed?

His second example concerns the crisis over the extent of presidential power in the United States during the Watergate scandal. While the US Constitution purports to declare clearly and comprehensively the legal terms under which the branches exercise their power, in fact throughout American history executive power had wisely been left undefined. For Foley, this is a mark of constitutional maturity. Watergate brought an abeyance into the centre of political and constitutional conflict. When political actors collude in avoiding the political resolution of the unresolvable, they act wisely.

Foley’s thesis has been taken up in Canada by David Thomas whose aptly titled book, Whistling Past the Graveyard, expresses the continuing need in this country to avoid asking questions about Quebec’s role in Canada.[8] Answers readily come to mind: Quebec is a province, a nation, a distinct society. But asserting any one of these answers portends an existential crisis, as Canadians discovered during the 1970s and 1980s. The lesson for mature constitutionalists aware of the importance of abeyances: Better let this dog sleep and move on. Aside from the perennial question of Quebec’s place in Canada, other abeyances abound.  The relationship between hallowed individual rights in the Charter and aboriginal self-government protected by s. 35 of the Constitution Act, 1982, remains generally unexplored, very likely because the two do not fit coherently together.[9] Canada is a federal country with robust powers allocated to the provinces. This is difficult to square with the principle that the country also purports to be an economic union. The question left unaddressed for much of Canadian history is the degree to which pre-existing political communities entering Confederation are to surrender their policy powers to the formation of a larger Canadian polity. Confederation occurred and survived its formative period, arguably, because the question was unasked.[10]

Thomas’s study focusses on Quebec and thus overlooks abeyances in the context of rights and judicial review. Here, Foley’s discussion of the US applies to Canada quite nicely. Judicial review flows naturally from the existence of a written constitution and the legalistic penchant for certainty. Against this strong cultural current, political and legal actors must protect the abeyances essential to stable government. Courts must avoid saying what the constitution is; they must confine themselves to saying what is constitutional. Foley’s point about American constitutionalism:

“As the handmaiden of the constitution . . . the Supreme Court is traditionally a most zealous guardian of the document’s modesty. The court has a reputation for clarifying the constitution, but its chief contribution, and the one for which is most valued, is to answer constitutional questions while preserving the constitution’s imprecision.”[11]

Foley’s comment is in respect to the court’s job in managing the extent of executive authority, but the point applies to the Canadian case too. To cite one example among many, in Gosselin v. Quebec (Attorney General) the issue was the constitutionality of a Quebec social assistance which set social assistance rates according to age: young Quebeckers who refuse to work or enroll in training get 1/3 the rate of older recipients. A bare majority dismissed the ss. 7 and 15 arguments. In dissent, Justice Arbour argued that the right to life in s. 7 means the positive right to a basic level of government-guaranteed material resources. For the majority, Chief Justice McLachlin differed with Arbour, but in a most indirect fashion. “One day,” she wrote, “ s. 7 may be interpreted to include positive obligations.”[12] No arguments for or against – just temporizing.

The constitutional order as a whole must engage in a sort of obfuscation in respect to the role of courts as such. The management of abeyances takes courts far beyond the mechanical role of applying settled legal rules to disputes. Judges are political actors in a high sense of the term. Foley’s view recalls the Tocquevillian position that, at their best, judges are to be statesmen, able to read the spirit of the times and shape and at times neutralize the very public opinion that is the basis of judicial power and constitutional legitimacy.[13] This of course places pressure on the myth of the judge as legal officer above the political fray. Judicial appointment is thus a process shrouded in obfuscation and avoidance. As Foley puts it in the American context, “proponents and opponents of Supreme Court appointees go to great verbal lengths to disguise their political persuasions in euphemisms and circumlocutions. An integral part of the politics of Supreme Court appointments is that they should not be seen as political at all.”[14]

While Foley’s analysis of abeyances remains pertinent, Burke’s defence of constitutional ornamentation seems remote and antiquarian. But the symbolic character of constitutional politics is there for all to see. Canada’s patriation exercise and the formal proclamation of the Canada Act, 1982 was a period of high symbolism. The proceedings of Parliament and the Supreme Court remain draped in majesty and august solemnity. Politicians continue to tip-toe around judicial politics with euphemism and indirection. There remains, in other words, a significant mystical element in the constitution whose purpose and effect is to stimulate the affections of Canadians. The Canadian constitution is not simply an efficient machine for producing policy outputs. It is a dignified means of stimulating support and reverence. The constitution is in significant measure both silent and symbolic.

Both the silence and symbolism of the constitution add up to constitutional porosity. Political actors can attempt to fill in the gaps of that porosity with their particular political desires to shape the citizenry. Ideologues crave certainty, not ambiguity. The Canadian Court Party is among recent attempts to do something that others have already thought of. This brings us to Walter Bagehot.

Walter Bagehot’s Constitutional Politics of Deception

Bagehot’s The English Constitution is remembered most for two things. First, it dispels the notion that the House of Commons is the critical centre of power. English government, Bagehot insists, is cabinet government. Second, Bagehot distinguishes between the efficient and dignified parts of the constitution. His book is much less well known for its central thesis that constitutions are highly particular things intimately related to the unique conditions of people, time, and place. Accordingly, constitutions are not exportable. Some constitutional principles may be exportable, but not the whole thing. This is because constitutions depend on the support of the people, and for all but the most enlightened and rational, that support is curried by myth and token and symbol, not pure rational assent. And the myths that curry support are highly particular to people, time, and place. Illusions are not exportable. Successful constitutions depend on deception in order to work; they depend on the cultivation of illusions that prompt the patriotic assent of the dull and uneducated. The only exception to this rule is the case of the republican constitution for a people that is rational and capable of government by discussion. Such a government, Bagehot averred, was long in the future. In order to get there from here, statesmen had to foster citizen support by non-rational means.

Like other humanist Victorians, Bagehot drank deeply of the Darwinian distinction between lower and higher, and applied to human order Darwinian concepts of time, struggle, adaptation, and natural selection.[15] Like that of his contemporary John Stuart Mill, Bagehot’s notion of civilization was cultural and intellectual, not racial and biological. Success is measured by survival; the society that outlasts the others is best. Men need to be tamed, reined in, their energies directed to the aims of the regime. Societies characterized by patrilineal descent, for example, succeed because fathers teach their sons military discipline, and military prowess conduces to success.  But beyond simple survival against external enemies, polities first need fixity to undergird unity, predictability, and the chance to plan for the future. Fixity is provided by custom and law – the codes of permanence and habit on which simple minds depend. Progress, however, is limited by fixity. Variability is what replaces poor, anachronistic customs with new ones.[16] In the ideal, future case, variability dispenses with custom altogether and operates on the basis of reason, science, and abstract discussion; these depend on the leisure to sit, think, deliberate, and plan. The free regime is ultimately based on rational choice. So Progress is the movement from brute survival, to custom, and finally to government by discussion.[17] Utility and efficiency, Bagehot perceptively suggested, is the future of government.

Humans, Bagehot notes, do not ascend the inclined plane of Progress at the same time and at the same rate. Primitive peoples are dull, deferential, unintelligent, and moved by feeling and symbols more than by argument and science. Their religion is superstitious, itself a primordial and crude form of inductive inquiry. They are captivated by spectacle, not discussion. As a result they are moved by the dignified elements of a regime, its ceremony, pomp, myth, and romance. Civilized people, on the other hand, can sit and deliberate before acting. They can operate in an environment free of the rule of custom. They can decide on the basis of reason, science, and discussion. The distinction between primitive and civilized operates between societies and also within them. The great contemporary political challenge for Bagehot is to move the primitive rule of custom to rule by discussion, essentially to evolve from political paternalism to republicanism.

Here is where Bagehot engages practical questions arising in 19th century British circumstances. What is good about the English constitution, and can that constitution be universalized, that is, exported to other nations? Can we, in short, export constitutional Progress? Bagehot argues that the core of the English constitution is the fusion of executive and legislative power and thus the principle of responsible government. It is first of all fit for the democratic times. Bagehot wrote in the period of increasing enfranchisement. The challenge was to civilize the lower classes even as those classes assumed electoral power. British democracy was representative democracy and so voters stood at one remove from political power by electing their betters. And their betters in the House were the ones who largely determined the composition and defeat of ministries.

In addition, responsible government, by tying the fate of the government to the temper of the House of Commons, gave an importance to parliamentary debate that is lacking in the American Congress. If the government can fall due to House debate, the stakes are high, the mind is concentrated, the passions are constrained, and the quality of discussion improved. This is so not only in the House but in the newspapers and civil society generally. So responsible government not only depends on the capacity for government by discussion but fosters it, too. Though it performs its public educational function poorly, says Bagehot, Parliament does it better when that teaching is “concrete, embodied, and short.”[18]

Is the English constitution exportable? According to Bagehot, the whole thing is not, but perhaps the principle of responsible government is. National character is highly particular. Each polity will contain different mixes of lower and higher classes. And each will have peculiar, basically accidental customs and traditions to curry stability, deference, and support of the lower orders for the regime. As the franchise expands, greater numbers of the lower orders are brought into the vicinity of power. They are not ready for government by discussion. Variability will either disorient or thoughtlessly embolden them. They want, and the polity needs, mechanisms by the operation of which they defer to their betters. The lower orders defer to their betters and should be encouraged to continue to do so until they rise to the demands of government by discussion.

England’s monarchical form provides just the illusion of majesty to excite the support of the people.  Bagehot is clear: “A republic has insinuated itself beneath the folds of monarchy.”[19] But the people believe the Queen rules, that the House really is just a talk-shop. They believe also in her wisdom and beneficence. Thus the regime has the support of the people as well as their political passivity. Here is the full picture:

“The characteristic of the English Monarchy is that it retains the feelings by which the heroic kings governed their rude age, and has added the feelings by which the constitutions of later Greece ruled in more refined ages. We are a more mixed people than the Athenians, or probably than any political Greeks. We have progressed more unequally. The slaves in ancient times were a separate order; not ruled by the same laws, or thoughts, as other men. It was not necessary to think of them in making a constitution: it was not necessary to improve them in order to make a constitution possible. The Greek legislator had not to combine in his polity men like the labourers of Somersetshire, and men like Mr. Grote. He had not to deal with a community in which primitive barbarism lay as a recognized basis to acquired civilization. We have. We have no slaves to keep down by special terrors and independent legislation. But we have whole classes unable to comprehend the idea of a constitution [,] unable to feel the least attachment to impersonal laws. Most do indeed vaguely know that there are some other institutions besides the Queen, and some rules by which she governs. But a vast number like their minds to dwell more upon her than upon anything else, and therefore she is inestimable. A Republic has only difficult ideas in government; a Constitutional Monarchy has an easy idea too; it has a comprehensible element for the vacant many, as well as complex laws and notions for the inquiring few.”[20]

Royalty thus ”acts as a disguise. It enables our real rulers to change without heedless people knowing it. The masses of Englishmen are not fit for an elective government; if they knew how near they were to it, they would be surprised, and almost tremble.”[21]

The Englishman’s affection for the monarchy depends in large part on his sense of the timeless, immemorial character of the institution. Deference and custom are long in the making and can be dashed quickly. Thus until the masses reach full maturity, it is imperative not to disturb the illusion:  “Its mystery is its life. We must not let daylight upon magic.”[22] His advice to the English statesman: “it is needful to keep the ancient show while we secretly interpolate a new reality.”[23]

Insofar as the English constitution works, it works on the basis of an astute matching of institutions to particular popular temper and local tradition. And insofar as deference is produced by a long history of the monarchical element in English constitutionalism, the English constitution cannot be exported in toto. Other nations cannot engineer deference to an English monarchical transplant. They would do well to consider the adoption of responsible government, Bagehot argues, but their statesman will have to deploy in their own circumstances those resources that foster the illusions that bridge the movement from primitivism to civilization.

In Canada, the status of the monarchy is the object of indifference and to that extent secure. More momentous is the relationship between the judicial and political institutions. Has Canada attained the ideal of government by discussion? Or does Canada have a dignified part of its constitution? If so, what part is dignified?

The Courts and the Emergence of Parliament as the Dignified Part of the Constitution

Morton and Knopff’s 2000 study is an analysis of the migration of political power from Parliament to the courts, and particularly to the Supreme Court of Canada. Parliament – which, as s. 17 of the Constitution Act, 1867 makes clear, encompasses the Queen, the House of Commons, and the Senate — has become dignified and the courts have become the efficient part of the constitution. Bagehot’s argument was that the retention of the dignified monarchy was necessary to maintain the support for the constitution among people not yet equal to the robust cognitive demands of republican government by discussion. In Canada, Parliament remains necessary to support the democratic credentials of the constitution, but real, efficient power has migrated in great measure to the courts. And while political elites steered the smooth enfranchisement of the masses in 19th century England, the Court Party purports to do the same in 21st century Canada. Chief Justice McLachlin`s encomium to the franchise in Sauvé even as she voted to strike down a law of Parliament captures the situation perfectly.

But the exercise of efficient judicial power must be done with care since, as the above discussion makes clear, judicial power rests on the constitutional assumption that independent courts do not exercise legislative power as they discharge their constitutional function. They regularly intone that they pronounce not on the wisdom of laws but on their constitutionality. They develop abstract, objective-sounding tests to determine whether a law is a reasonable limit on a right. They relax procedural rules to facilitate the hearing of momentous appeals. They ponder hypothetical fact situations not formally before them in an extant appeal.[24] And they cloak moral judgments in the guise of measurable, scalar classifications. A recent example is Carter v. Canada in which a unanimous Supreme Court upheld a trial level court’s invalidation of ss. 14 and 241 of the Criminal Code which banned assisted suicide. The Court referred to the way in which the law interfered with “fundamentally important and personal medical decision- making”, the way in which people were “denied the opportunity to make a choice that may be very important,” how it blocked a decision made in accordance with “lifelong values”, how the decision to kill oneself arises from a “deeply personal and fundamental belief”, and so on.[25] Courts in liberal democracies are not supposed to enforce morality; liberalism is all about the enforcement of “neutral” principle defining a regime in which people live out individual conceptions of the good life. But the Supreme Court is a moral tutor, filling general categories with moral content.[26]

The rhetoric in Sauvé is as a result a bow to the dignified part of the constitution. In Bagehot’s England, the Queen reigns but does not rule, though things are designed to keep the people in thrall to the idea of monarchical rule while they remain immature. In Canada Parliament increasingly reigns while the courts increasingly rule. Presumably, Canadians in their maturity will join the Court Party. The critical way in which the courts are different from parliaments is that the latter are explicitly and obviously political, while the very nature of the courts is that they be seen to remain judicial, not political. They do this by retaining dignified elements, a type of secular sacred majesty that insulates them from overt political criticism. In return they must deploy the skills of indirection to shroud their efficient character.

It is possible to see this account of the courts as a competitor to Donald Savoie’s Court Government thesis. Savoie’s argument is that the Prime Minister’s Office has become imperial in Canadian politics, draining the legislative houses of power.[27] So while Savoie agrees that power has left the House, he says it has gone to the PMO, while Morton and Knopff suggest that a great deal of it has gone to the courts. This is too big an issue to be resolved here, but it is reasonable to consider the Court Party and Court Government theses to be complementary rather than competing. If this is so, then the phenomenon linking the two theses is the decline of Parliament. Efficient power has been draining from the legislative houses and to the Prime Minister’s Office, on the one hand, and to the courts on the other. One might expect the major confrontations in Canadian politics increasingly to be between the political executive and the high court. Of course, this is precisely what we have seen in in recent years. What matters is the relationship between the Court Party and the incumbent government. When the prime minister is a faithful champion of the Court Party, the courts are quiet. When the prime minister’s views are considered averse to the interests of the Court Party, the courts become efficient rulers. One only has to consider the invalidation of the government’s Senate reform plan, its criminal law changes, the unprecedented termination of Marc Nadon’s appointment to the Supreme Court (the challenge initiated by a Toronto lawyer), and so on. While some suggest that it is the Americanization of Canadian politics by the Harperites that they decry,[28] it is really about Harper’s putative attacks on the Court Party.

Conclusion

This essay is essentially an appreciation of Morton and Knopff’s Court Party thesis. Their book is a gem of political science analysis, looking at the character of institutions, the movements of actors, the alteration of attitudes, and the flow of money, asking the critical question: Cui bono? While the book has been understood to be about judicial power-grabs, the authors are clear throughout: the courts are instruments of change wrought by a partisan configuration embedded in strategic institutions and regions in the country.

The Court Party has stacked up impressive victories in the years since the book’s publication. Now the place of the Supreme Court atop the Canadian firmament is almost unquestioned. Public support for the Court is high,[29] criticism of its decisions careful and muted, and the reputation of the Chief Justice secure. The Court Party has scored an impressive institutional victory and has indeed changed Canadian political culture in a decisively post-materialist direction. But if it is a party, can it be tossed out of office in favour of a new party? Or is it a party unlike the others?

In his defense of political parties and moderate party spirit in contemporary American politics, Russell Muirhead distinguishes low partisanship and high partisanship. Low partisanship refers to the retail techniques and devices to win elections. High partisanship concerns sincere debates about the direction of the political community. High partisanship bespeaks a second distinction between constitutional and revolutionary partisanship. It is one thing for a party to accept the basic terms of the constitution and work within them; it is another for a partisan formation to assert the general interests of humanity outside the terms of the constitutional settlement, like Marx’s Communist Party. The Communist Party is a quintessential example of what Muirhead calls the “last party”, the party to end parties, the party to embed its universalist vision into the very constitutional fabric of the regime:

Modern politics can be open to partisanship of small differences but must remain hostile to the profound partisanship that animated traditional politics. Engaging small differences is reasonable, since it presupposes agreement on rational first principles of political morality. Engaging profound differences is unreasonable, since it reveals an inability to grasp the truth of those same principles. The single exception to the modern hostility to party is what might be called the ‘last party.’ The last party is distinguished by its commitment to the rational first principles of political morality at a moment when these principles remain in dispute. Its victory would install rational first principles at the foundation of the regime, and this, in turn, would make partisanship as traditionally understood henceforth unnecessary and unjustifiable.[30]

Is the Court Party constitutional or revolutionary? Is it a conventional party or a last party? The Court Party seems to defy these categories. It works within the constitution but for the purpose of decisive constitutional change. It is a party, but gravitates to the appointed branch, not the elective. And while Canada has functioned since 1867, the Court Party wishes to re-found Canada on new political principles. While we may have entered a post-revolutionary phase in our history, the Court Party remains in control. It is the part that seeks to become the whole.

 

Notes

[1] (Peterborough: Broadview Press, 2000).

[2] [2002] 3 S.C.R. 519.

[3] Ibid., para 13

[4] Ibid., para 31. Emphasis added.

[5] Ibid., para 34. Emphasis added.

[6] Edmund Burke, Reflection on the Revolution in France. [1790] (New York: Oxford University Press, 1993), 77.

[7] (Oxford: Routledge, 1989).

[8] David Thomas, Whistling Past the Graveyard: Constitutional Abeyances, Quebec, and the Future of Canada. (Toronto: Oxford University Press, 1997).

[9] An exception to the general silence is David Milward, Aboriginal Justice and the Charter: Realizing a Culturally Sensitive Interpretation of Legal Rights. (Vancouver: UBC Press, 2012). The book raises as many questions as it answers.

[10] While s. 92 of the of the Constitution Act, 1867 has been interpreted to give the provinces prodigious economic powers, enabling them to fashion provincial economies, s. 121 of the same Act declares that “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.” This provision lay dormant for decades until it was used recently to strike down a law prot4cting the New Brunswick Liquor Corporation monopoly on the sale of alcohol in New Brunswick. The judge in the case held that s. 121 prohibits both tariff and non-tariff barriers to inter-provincial trade. The significance of this finding for the federation is huge. See Queen v. Comeau (NB Prov. Ct., April 29, 2016).

[11] Foley, 119.

[12] Gosselin v., Quebec (Attorney General) [2002] 4 SCR 429, para 82.

[13] Alexis de Tocqueville, Democracy in America (1830; 1835), I.1.8. See also Ralph Lerner, “The Supreme Court as Republican Schoolmaster” The Supreme Court Review. (1967), 127-180.

[14] Foley, 125. Predictably, when the Harper government appointed judges with more traditional views of the judicial function, he was castigated for politicizing the judiciary. See Sean Fine,”Stephen Harper’s courts: How the judiciary has been remade” The Globe and Mail. (July 24, 2015).

[15] This is particularly evident in Bagehot’s Physics and Politics, or thoughts on the application of principles of natural selection and inheritance to political society. [1872] (Westmead: Gregg International Publishers, 1971). However Darwinian is the spirit of Physics and Politics, critics suggest that Bagehot relies more on Lemarck and Spencer than Darwin himself. See Ignaas Devisch, “The Progress of Society: An Inquiry in the ‘Old-Fashioned’ Thesis of Walter Bagehot” British Journal for the History of Philosophy. 19(3) (2011), 519-541.

[16] While Bagehot does not dwell on the point, he does note that the unwritten character of the English constitution is superior to the legalisms into which so many political problems of American politics are translated. The very flexibility of the unwritten constitution is fit for the variability of a living constitutionalism of constant change. See English Constitution, preface to the second edition. Also: Robert Colls, “After Bagehot: Rethinking the Constitution.” The Political Quarterly. 78(4), (October-December, 2007), 518-526.

[17] Physics and Politics, chapter 5.

[18] Bagehot, English Constitution, 118.

[19] Ibid., 44

[20] Ibid., 36-37.

[21] Ibid., 46.

[22] Ibid., 50.

[23] Ibid., 179.

[24] R. v. Nur [2015] 1 S.C.R. 773.

[25] Carter v. Canada [2015] 1 S.C.R. 331, paras 64-69.

[26] Writes one critic, “All of these general terms liberals use – liberty, autonomy, dignity, and equality, as well as public reason, self-respect, animus, hate-speech, tolerance, diversity, bigotry, and discrimination – are Trojan Horses: liberals employ these very powerful rhetorical tools to smuggle their view of the good or morality into the conversation. They are ruses, sound-bites, slogans, decoys to distract from the underlying goods liberals are trying to impose.” John P. Safranek, The Myth of Liberalism. (Washington D.C.: Catholic University of America Press, 2915), 188. See also Stephen D. Smith, The Disenchantment of Secular Discourse. (Cambridge, MA: Harvard University Press, 2010).

[27] Donald J. Savoie, Governing from the Centre: The Concentration of Power in Canadian Politics. (Toronto, University of Toronto Press, 1999). Savoie`s thesis has produced a cottage industry of writing on the subject, an output that increased in intensity with the unfolding the Harper regime from 2006 to 2015. See for example: Peter H. Russell, Two Cheers for Minority Government: The evolution of Canadian parliamentary democracy. (Toronto: EMP, 2008); Peter H. Russell and Lorne Sossin, eds., Parliamentary Democracy in Crisis. (Toronto: University of Toronto Press, 2009); Perter Aucoin, et al, Democratizing the Constitution: Reforming Responsible Government. (Toronto: EMP’ 2011); and Brent Rathgeber, Irresponsible Government: The decline of parliamentary democracy in Canada. (Toronto: Dundurn, 2014).

[28] David Schneiderman, Red, White, and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture. (Toronto: University of Toronto Press, 2015).

[29] B.J. Siekierski, “Vast Majority of Canadians Trust Supreme Court, Including Most Tories.” Ipolitics.ca. (August 16, 2015).

[30] Russell Muirhead, The Promise of Party in  a Polarized Age. (Cambridge, MA: Harvard University Press, 2014), 38.

 

A version of this paper was originally presented to a workshop honouring the career and scholarship of Professor Rainer Knopff of the University of Calgary, Calgary, Alberta, May 30, 2016. The author owes a debt to Professor Knopff for his mentorship and his friendship.

Tom Bateman

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Tom Bateman is Associate Professor and Chair of Political Science at St Thomas University in Fredericton. His teaching and research interests are in constitutional politics, the Charter of rights, and religion and politics.