Based on an analysis of published works by scholars in the field, the definition of ancient constitutionalism which will be employed for the purpose of this argument is as follows; a reflective form of long-term evolutionary constitution-drafting which combines elements of written legislation and non-written convention, is subject to extensive judicial review, and attempts to accommodate diversity through responsible and representative government. From this point forward, the focus of this essay will be on the Canadian experience and the embodiments of these characteristics in the country’s constitutional processes.
It is widely held that the constitution predates Canada’s formation as a state. The history is one of rich cultural integration; many ways of life have been present since Confederation and, while it may not have always been so, all of them enjoy an ever-increasing share of the national identity. As Will Kymlicka describes in his analysis of multiculturalism in liberal democratic states, Canada has been incorporating peoples into its political and social landscape for centuries. He explains that, “in the seventeenth and eighteenth centuries, the earliest European settlers had to reach a modus vivendi with Aboriginal peoples,” (1). Although historically Natives not received fair or equal treatment, it is undeniable that there has been an ongoing political dialogue addressing their demands. This is one of the facets of ancient constitutionalism and will be addressed later. Kymlicka continues, “in the eighteenth and nineteenth centuries, the British colonial administrators had to learn to live with the long-settled French population,” (1). Considering they began as subjugated peoples, the Quebecois have gradually been endowed with a constitutionally protected right to maintain their history, language, religion and culture. They presently share equal status with all other Canadians and are often attributed as founding peoples. However, this has come through continuous political and legal propositioning, a process which has embodied many of the characteristics of ancient constitutionalism, as will be discussed later. Finally, Kymlicka goes on to say that, “in the nineteenth and twentieth centuries, Canada had to accommodate successive waves of immigration,” (1). Diversification of people can only increase the number of viewpoints that have to be considered in constitutional politics. Once again, the constitution has been reflective of the changing demographics of Canadian society. To summarize his thoughts on this issue, Kymlicka states that:
At each step along the way, Canada’s stability and prosperity - and indeed its very survival - have depended on its ability to respond constructively to new forms of diversity, and to develop new relationships of cooperation and co-existence, without undermining the often fragile accommodations of older forms of diversity, which are themselves continually being contested and renegotiated. (1)
Canada changes with its people, and its constitution has been a reflective incarnation of those changes. For evidence of this, specific constitutional doctrines, debates and episodes will be considered in chronological order.
The Royal Proclamation of 1763 is fairly widely regarded as Canada’s inaugural constitution. Essentially, the Proclamation, “detached the old western territories of Canada, including the Ohio, from Canadian jurisdiction, and made them into a separate Indian territory,” whilst still maintaining the possibility, however vague, of, “establishing ‘general assemblies’ in the future,” (Russell 13). It was also an attempt to assimilate the settled French population in the British conquerors way of life. They built Protestant Churches and English speaking schools in an effort to transform the Quebecois, (Russell 13). It became obvious, however, that this was not going to be possible. The people of Quebec had become an established cultural society and in order to build Canada, they had to be accommodated, not absorbed. It is for this reason that the, “particular objective, forced assimilation, was dropped from the second British constitution for Canada,” (Russell 13). In this case it is noticeable that when in conflict, the constitution of Canada was transformed, not the people. As well it occurred through popular demand and the politics of recognition, key aspects of the ancient constitutionalism Canada has exhibited.
Over the next century, the constitution would evolve slowly but in accordance with the socio-political tides. At each step of the way, more and more elaborate institutions and governing structures were conceived and implemented. Truly, Canadians were determining the fundamental framework that would shape the future of the constitution. Beginning in 1774 with the Quebec Act, it started to become the peoples’ constitution. Although the act did not establish representative governments, it did provide the people of Quebec with religious and linguistic freedoms, as well as continued practice of their civil law. At this point, the constitution had been subject to both French and English influence. It was becoming more reflective, (Russell 13).
The trend continued with the Constitution Act of 1791, which not only divided the colonies into what would become Ontario and Quebec, but also established elected legislatures for both of them. However while the government was now representative, it was not responsible. The working classes were not satisfied with the semi-democratic system that had developed, leading to the Rebellions of 1837. The response of the British was one of panic. They feared that English and French settlers could not co-exist and decided (with advice given to them by Lord Durham), to launch another attempt at Quebecois assimilation. This was symbolized in the Act of Union 1840, a unification of the two colonies and establishment of a single legislature. While the goal of this constitution was long-term integration, it produced the opposite results. The pursuit of, “a more democratic form of government responsible to the majority in the elected branch of parliament,” was intensified by the Canadian people, however it was not achieved, “through a formal constitutional text,” (Russell 15). Instead, politicians from across the spectrum campaigned tirelessly, even forming unlikely coalitions, in order to come to a consensus. Though it was an extensive and drawn-out process, it was, “in this way the principle of responsible government, the democratic core of British parliamentary government, entered Canada’s constitutional system,” (Russell 15).
Although the liberal democratic framework was beginning to take place, at this point in history Canada was regarded as a conservative state. In fact, “for most of its history Canada took an approach that was deeply illiberal and undemocratic,” (Kymlicka 5). Before Confederation, Canada was a much less diverse place then it is today, and therefore was likely to have experienced more intolerance. It is commonplace to suggest that Canadian fathers of Confederation drafted its fifth constitution (the British North America Act of 1867) from a traditional conservative perception. This, as Janet Azjenstat points out, is not necessarily true. The was no single political outlook dominating the Canadian experience, “nor were fathers of Confederation ideological tories in the standard definition. Some were Conservatives. Others were Liberals. But whether capital-c Conservative or capital-l Liberals, they weren’t deferential, collectivist conservatives in the old-fashioned sense. They designed a free constitution for a free country,” (Azjenstat 6). The important thing to understand here is that politicians, regardless of political affiliation, had an interest in Confederation. The principles of the Canadian constitution transcended party lines and became recognized by all as fundamental. Once these structures had been established, it became the role of the courts to “flesh” out how they would be interpreted.
In his discussion of constitutions and judicial review, Russell states that, “written constitutions can establish the broad grooves in which a nation-state develops. But what happens with these grooves – the constitutional tilt favored by history – is determined not by the constitutional text but the political forces and events that shape the country’s subsequent history,” (Russell 34). This perfectly describes the Canadian situation. When Canada was established as a federalist nation, the goal of many of the fathers of Confederation was a strong, centralist government. They saw an opportunity to unite distinctly different peoples under one constitution, and thus one identity. Theory, however, would prove to be very different from practice.
The differences of Canadian people are usually most noticeable across regions. Quebec is an obvious example. While the Quebecois represent a national minority with particular interests, they are also a geo-political unit of the federalist state. In other words, a province. Correspondingly, in Ontario, the Maritimes and the West different conceptions of how government should operate were present. Although Canada had been unified under one legislature, it was obvious that opinion was divided clearly along provincial lines. There was no way that all the different opinions could be considered in a unilateral, central government. Thus, the constitution responded through a process of judicial review in response to the provincial rights movement.
The overall goal of elected provincial members of parliament was to break down a hierarchal system of federalism, in which the central government held distinct residual powers. What ensued is evidence of the fact that a shift in political sentiment can render formal, legal powers moot. Through the first thirty years of the union, most of the provincial gains in this area were made through judicial review, as is common in ancient constitutionalism. Between the years 1880 and 1896 the Judicial Committee of the Privy Council (Canada’s highest court of appeal at the time) were confronted with 18 cases, 15 of which they ruled in favor of the provinces, effectively reversing “every major centralist doctrine,” (Russell 36). A premier example is that of Citizens Insurance Co. Vs. Parsons. The case concerned the trade and commerce clause of the constitution, which had previously allocated all related matters to the federal government. The judges were said to have, “tried to interpret the Act in a way which would make the Act internally consistent,” (Knopff 37). The result was that the judges felt, “obliged to attach some limits to broad terms like trade and commerce,” (Knopff 37), and thus weaken the federal government while empowering the provinces. This trend would continue until Canada became the highly decentralized federation it is today. The process of judicial review, as well as the political attitudes of the people, was responsible for these reflective shifts in constitutional doctrine as is common in ancient constitutionalism. Canada had become decentralized, responsible to its people and representative in government. The conditions were perfect for liberalism to flourish.
At the outbreak of the twentieth century, immigration to the west had become a significant trend. Multiculturalism, and how to best accommodate it, began to dominate the Canadian perspective. As Kymlicka puts it:
The first and foremost fact about Canada’s current diversity policies…is that they are liberal in their goals, their legal formulation and in their administrative implementation. These policies have been (re)formulated by liberal political elites, supported by an increasingly liberalized public opinion, institutionalized within liberal-democratic governance structures and integrated within the framework of a liberal constitution.
The national identity of Canada has increasingly come to include more diverse groups of people, and the constitution has evolved with it. Because of these additional voices, a widespread demand for social programs was brought on the wars and depression of the early-mid century. Canadians had committed themselves to basic human rights and the constitution would come to embody that commitment. The creation of the welfare state gives credence to these ideas. The relief to the poor during war or depression times was instrumental in the survival of Canada through those times, and the social democrats of the country asked, “why the same effort that was needed to win the war was not sustained during peace in pursuit of economic security and an end to poverty,” (Wiseman 10). As had been a consistent theme in the history of Canadian constitutional politics, the people got what they wanted. Even the most ardent opposition to socialism had accepted the implementation of the welfare state. The national identity of Canada began to evolve with its constitution; while there were no national religious, cultural or racial ties, the connection was on a humanitarian level, a perception of Canada that has persisted to this day.
Perhaps the most significant era in Canadian constitutional politics occurred between 1960 and 1975, a period Canadian historians recognize as the Quiet Revolution. It was during this period of time that Canada’s constitution really began to reflect the people. Truly, the process of liberalization was not only taking effect, but also coming into fruition with tangible changes to the constitution. In this period, “liberalizing reforms were instituted across virtually the entire range of social policy – reforms that, among other things, liberalized abortion laws, divorce laws, and access to contraception; abolished the death penalty; prohibited gender and religious discrimination; and decriminalized homosexuality,” (Kymlicka 16). It has been argued however, that interference in its peoples lives is not an aspect of liberalism, as it hinders individual freedom. But as Aster and Axworthy poignantly espouse, “we may want less government intervention generally, but there is recognition that many aspects of our lives should not be run by private enterprise, and that there are areas in which the government must intervene,” (Aster 93).
Canada is widely renowned as a peaceful country with an excellent reputation for protecting its people regardless of particulars. There has been a continued attempt to materialize a single constitution and thus a single national identity, but to this point it has not been possible. Banting and Simeon put it best, perhaps, by saying that “lack of consensus makes constitutional change necessary. The same lack makes resolution supremely difficult,” (25). Canadians have accepted the fact that no one identity can describe them. Instead they have embraced a collectivity of identities, which have come to life in the ancient constitutional process that has taken place over the course of its history.
Works Cited
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Aster, Howard and Thomas Axworthy. Searching for the New Liberalism: Perspectives, policies, prospect. Oakville: Mosaic Press, 2003.
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Ajzenstat, Janet. The Once and Future of Canadian Democracy. Montreal: McGill/Queen’s University Press, 2002.
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Banting, Keith and Richard Simeon. The Politics of Constitutional Chance in Industrial Nations. Hong Kong: The MacMillan Press, 1985.
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Chambers, Simone. “New Constitutionalism: Democracy, Habermas and Canadian Exceptionalism.” Canadian Political Philosophy. Oxford: Oxford University Press (2007): 62-72.
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Isitt, Benjamin and Nelson Wiseman. “Social Democracy in Twentieth Century Canada: An Interpretive Framework.” Canadian Journal of Political Science 40.3 (2007): 1-19.
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Knopff, Rainer, Ted Morton and Peter Russell. Leading Constitutional Decisions.
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Kymlicka, Will. “Ethnocultural Diversity in a Liberal State: Making Sense of the Canadian Model(s).” Diversity, Recognition and Shared Citizenship in Canada. New York: Institute for Research on Public Policy, 2007.
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Russell, Peter H. Constitutional Odyssey. Toronto: University of Toronto Press, 2004.