According to data from a long-term research initiative on the origins and characteristics of written constitutions, the average life expectancy of a national constitution is approximately 19 years.1 At 150 years and counting, Canada’s Constitution Act, 1867 (originally known as the British North America Act) is an impressive outlier. Where many other national constitutions have failed, expired, or been replaced, the Canadian Constitution has endured—amended and renamed to be sure, but endured all the same. What accounts for its longevity? This chapter addresses this question from three intersecting perspectives. The first surveys the environment in which the Constitution Act, 1867 was produced, in an attempt to identify the most important factors that influenced its creation. The second explores the possibility that this constitutional longevity may reflect crucial design decisions made by the architects responsible for drafting the Constitution Act, 1867, the group conventionally known as the Fathers of Confederation. More specifically, it suggests that key to understanding the endurance of the Canadian Constitution is the extent to which it embodies “constitutional ambivalence.” The third part examines the counterfactual possibility that when the Fathers ignored these elements of successful design, the structure they generated became vulnerable to protracted constitutional conflict and instability.
In constitution-making, timing is important.2 In the Canadian context, then, it is important to understand why the political movement that culminated in Confederation occurred when it did, in the mid-1860s. After all, some form of political, indeed federal, union of the British North American colonies (or provinces) had been discussed (p. 84) seriously in the 1850s in both Canada (the current provinces of Ontario and Quebec) and the Maritimes (New Brunswick, Nova Scotia, and Prince Edward Island), and had been floated frequently before that.3 Yet those earlier discussions came to nothing whereas the discussions in the mid-1860s ultimately produced a constitutional agreement to create a federal union, or Confederation, in British North America. What was the difference? The simple answer is that a variety of forces—some structural, others more contingent—came together to convince political elites in most of the British North American provinces that some form of dramatic constitutional change was either necessary or desirable, and that the conditions of the mid-1860s made action either urgent or propitious. It has become something of a mug’s game among historians to determine the relative weight of each factor in the Confederation calculus, and to analyze the complex configuration of “pro” and “anti” forces in each of the affected colonies. It is perhaps sufficient, and more helpful for our purposes here, to say that it is the confluence of factors rather than any single cause that ultimately drove the Confederation debate forward and produced its stiffest resistance.
What were the most important of these factors? Among the structural changes that commanded attention, none was more important than the transformation of a staple-based into an industrial economy. As Donald Creighton put it in an important study for the Rowell-Sirois Commission in 1938:
In Great Britain, and to a lesser extent in the United States, the twenty years which preceded Canadian Confederation formed a stage of importance in the great transition from commercialism to industrial capitalism. The revolution in technology, which had begun far back in the 18th century, continued without interruption; iron and coal provided at once the physical expression from human inventions and the power to drive them; and mechanized land and water transport carried the productions of large-scale industry to the four corners of the globe. The shift from wood to iron, from water-power to steam, from canals to railways and from sailing-ships to steamboats became virtually an accomplished fact.4
These technological developments affected British North America as well. As Creighton noted, the growth of railways in the province of Canada—from 60 miles of track in 1850 to more than two thousand by 1860—conveys a sense of the rapid pace of change.5 The new industrial economy presented enormous opportunities for the accumulation of wealth, and the evidence suggests that across the British North American provinces “there was a growing desire to participate in [it].”6 The challenge facing the British North (p. 85) Americans, however, was to find a way to sustain “the tremendous and expensive adjustments involved.”7 The inability of individual colonies to raise large amounts of capital, build infrastructure, create a coordinated transportation network for manufactured goods (including secure rail access to ocean ports), and provide security against economic shocks over which they had little control all stood in the way of full participation in the new international economy. As a response to all of these challenges, the creation of a national economy, led by a strong central government, rose to the top of the dance card of potential remedies.
The combination of opportunity and challenge was particularly striking with respect to western expansion. Until the mid-1850s, the North West (controlled by the Hudson’s Bay Company under royal charter) was viewed by most members of the Canadian political and economic elite as “a barren tract, forever destined by its soil and climate to remain a wilderness” and, therefore, “of limited use” beyond its traditional role in the fur trade.8 This view changed dramatically in the latter half of the 1850s after a series of blue-ribbon geological surveys9 concluded that, in fact, the prairie west was eminently suitable for agriculture and settlement. And although it took slightly longer for politicians to grasp the importance of these findings, by the time of the Confederation debates in the mid-1860s western expansion had become a key argument for union. “As George Brown pointed out, (the North West) involved an area ‘greater in extent than the whole soil of Russia,’ and that vast resource would be ‘opened up to civilization under the auspices of the British American Confederation.’ ”10 Aided by European emigration, the prairie west would become “the seat of an industrious, prosperous and powerful people”11 and provide linkage to other British colonies on the Pacific coast. But to do that would require a massive investment of both economic and political capital, neither of which was available in sufficient quantities in any single province.
Although the economic transformation created by industrialization affected all of the British North American colonies, the province of Canada faced an additional structural constraint of its own in the 1860s, namely institutional deadlock. As a result of the Act of Union of 1840, the communities of Canada East (Quebec) and Canada West (Ontario) had been united politically through a single legislative assembly. The two communities themselves, however, were quite different in composition: Canada East was largely French-speaking and Catholic; Canada West was overwhelmingly English-speaking and largely Protestant. To accommodate this linguistic and religious dualism a number of norms were developed to govern political life. Each community had equal representation in the legislative assembly (a principle that initially favoured Canada West because it had the smaller population). Political and administrative positions, including political References(p. 86) leadership, were apportioned on the basis of equality. A proto-federal system emerged, in which decision-making was decentralized so as to permit each section to have legislative autonomy and control over matters that affected only the local population, although which subjects were truly local and which not remained controversial. This sort of ambiguity was crucially important because on matters that pertained to the province as a whole the principle of “double majority” prevailed; legislation, by this rule, could only succeed if it was supported by a majority of representatives from each of the sections. All of these provisions produced collective action and coordination problems. The result was that the province of Canada was beset by “an almost chronic state of sectional rivalries” characterized by “small, precarious majorities in parliament, short-lived governments, frequent elections, and a permanent condition of governmental instability.”12
Dysfunctional though it was, this political dualism might have endured had it not been accompanied by a dramatic demographic shift between the two Canadas. When the Act of Union was promulgated in 1840, the population of Canada East exceeded that of Canada West. By 1851, Canada West had caught up, and by 1861 the population gap between Canada West and Canada East had widened significantly, propelled by large-scale immigration from the British Isles.13 This population imbalance emboldened leading anglophone politicians to argue relentlessly (and opportunistically) that legislative representation should be apportioned on the basis of population (“rep by pop”) rather than according to a principle of sectional equality. The likelihood that expansion to the prairie west would provide the basis for even greater Anglo-Protestant dominance reinforced the view in Canada West that the current constitutional arrangement could not hold. Most francophone politicians in Canada East resigned themselves to the inevitability of representational change, which produced a powerful incentive to find some better, more lasting form of protection for their social, cultural, linguistic, and legal distinctiveness. The best alternative on offer was some sort of federal arrangement that would provide for a general government apportioned roughly on the basis of population to govern on matters of general concern while leaving “perfect freedom and authority for the provinces to run their own internal affairs.”14
The political deadlock in Canada was largely home-grown or endogenous, but there were other external or exogenous structural changes that underscored the seismic changes associated with the 1860s. The most notable in this regard were the changing geo-political calculations that followed from the American Civil War. The Trent affair of 1861, in which American officials boarded a British vessel to intercept Confederate recruiters on their way to London, is a case in point. The episode was important at the time because it almost led to war, but in retrospect its real importance lies in the way (p. 87) it exposed the basic dilemma of mid-nineteenth-century British imperialism. On the one hand, Britain remained committed to defending its colonies, but wanted or needed to reduce its military expenditures. On the other, the Civil War demonstrated clearly that the United States possessed both growing military capacity and distinctly different national interests. The large question was what would happen, after the Civil War ended, to prevent British North America’s “absorption into the vortex of American confederation”15 by military means. The only satisfactory solution was through collective security. “In order to secure the help of (England’s) power in our defence, we must help ourselves. We could not do this satisfactorily or efficiently unless we had a Confederation. When all united, the enemy would know that if he attacked any part of these Provinces—Prince Edward Island or Canada—he would have to encounter the combined strength of the empire.”16 Or as Thomas D’Arcy McGee, another leading member of the Confederation coalition, put it pithily: “Let us remember this, that when the three cries among our next neighbours are money, taxation, blood, it is time for us to provide for our own security.”17
Nor was this structural geo-political change entirely abstract. A series of more contingent provocations galvanized sentiment in favour of union. The abrogation, in 1866, of the Reciprocity Treaty which had lubricated cross-border trade for more than a decade, was one sign of what Donald Creighton called America’s political truculence and economic aggressiveness.18 Various semi-official initiatives, including the introduction of a bill in the House of Representatives to annex Canada and an American warning that it did not consider itself bound to the agreement that had effectively de-militarized the Great Lakes after the War of 1812, were equally provocative (if improbable). And various border skirmishes, the most famous of which involved a group of Irish nationalists (Fenians), freshly energized by the end of the Civil War, added fuel to the fire at crucial moments in the run-up to Confederation. The desultory Fenian “raids” posed no serious threat to New Brunswick, but they became a lightning rod for those who argued that political union was necessary to ensure territorial integrity against a military power wanting to punish Britain for its support of the South. Eighty years ago, Chester Martin quipped that “it might almost be claimed that the Civil War which saved the American union created the Canadian.”19 This observation still has the ring of truth about it.
Yet if these structural conditions—economic, institutional, and geo-political—provided an inviting environment for constitutional change, the push for Confederation itself required a combination of virtu and fortuna as well. One crucial trigger was the (p. 88) formation, in June 1864, of the “Great Coalition” in Canada that brought together George Brown (leader of the Liberals/Grits in Canada West), John A. Macdonald (leader of the Conservatives in Canada West), and George-Étienne Cartier (leader of the Conservatives or Bleus in Canada East). The creation of this tri-party coalition (missing only the Liberals or Rouges of Canada East) was crucial because it broke the bitter and intractable partisan conflict that had characterized Canadian politics since the Act of Union.
Although their calculations varied, each of the three party leaders was willing to take a significant political risk in joining the Coalition.20 What brought, and ultimately held, them together was support for some form of federal union. But which form? One possibility was to officially or formally federalize the two Canadas, East and West, by revising the Act of Union into a more coherent, workable, and formal constitution. A more ambitious possibility was to construct a broader union within British North America that included the Maritime provinces and perhaps even the more distant Newfoundland as well. Prodded by the activist Lieutenant Governor of New Brunswick, Arthur Gordon, the governments of Nova Scotia, New Brunswick, and Prince Edward Island had decided, independently, to meet in September 1864 to discuss the possibility of a maritime union. In the event, the Canadian and Maritime delegates met together in Charlottetown, and reached an agreement in principle about the desirability of a British North American union. The same group (now with the addition of Newfoundland) re-convened in Quebec City in October 1864 to design a constitution in greater detail. The 72 Quebec Resolutions (as the draft constitution produced at Quebec was known) were then sent back to each of the provinces for approval (or rejection), and thereafter on to London. Revisions, refinements, and additions—some of them quite significant—were made in London over the course of 1866, both by the Canadian representatives and the British drafters. Introduced, debated, and passed by the Imperial Parliament in the early months of 1867, the British North America Act was given royal assent at the end of March, and came into effect on 1 July 1867.
What were the distinctive constitutional design choices embodied first in the Quebec Resolutions (1864), then the Constitution Act, 1867? Let us consider three pillars of the original Canadian constitutional design—federalism, democracy, and minority rights.
Clearly, the creation of a specifically federal union was central to the Confederation project. The Preamble to the Constitution Act, 1867 is explicit about the motivation that (p. 89) led to the Act’s creation. It begins: “Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united … .”21 Yet just as clearly, the genus of federalism includes a wide variety of species. If one takes as a pared-down working definition of federalism the division of legislative authority between a central government and some number of regional governments, the possibilities for variation in constitutional design are immense, ranging by example along a continuum from highly centralized to highly decentralized. What was distinctive about the federal design created by the delegates in Quebec in 1864 and embodied in the Constitution Act, 1867?
A significant number of the Confederation architects favoured a federation that endowed the national government with a full quiver of governmental powers adequate to the task of building and defending a prosperous trans-continental nation-state. This view followed logically and directly from the economic and geopolitical imperatives summarized above. As Donald Creighton, Macdonald’s biographer, put it in his study for the Rowell-Sirois Commission: “(T)he chief economic objective of the Dominion was the commercial integration of the country on a continental scale; and, as the authority which was obviously designed to assume the role of leadership in material development, the federal government was naturally accepted as the regulator of the business affairs of the new, commercial federation.”22
But strength at the centre was also a matter of sound constitutional design. John A. Macdonald articulated this argument explicitly in the course of a major speech during the debate on the Quebec Resolutions held in the Canadian legislative assembly in February–March 1865. The confederation plan had been developed in the long shadows of the American Civil War, and Macdonald maintained that he and the other architects had been keen to avoid the design flaws that, in their view, had led to the War:
Ever since the union was formed the difficulty of what is called “State Rights” has existed, and this had much to do in bringing on the present unhappy war in the United States. They commenced, in fact, at the wrong end. They declared by their Constitution that each state was a sovereignty in itself, and that all 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 legislatures, shall be conferred upon the General Government and Legislature. We have thus avoided that great source of the disruption of the United States.
(p. 90) Having learned from these American errors, Macdonald maintained that the Canadian plan combined “all the advantages of a legislative union under one administration, with, at the same time, the guarantees for local institutions and local laws.”23
There is, indeed, considerable evidence to substantiate Creighton’s claim that the federal government was expected to provide leadership in the “business affairs of the new, commercial federation” and Macdonald’s that the federal (or national) government had been assigned “all the great subjects of legislation” at Quebec. The list of federal powers in the Quebec Resolutions, carried over to Section 91 of the Constitution Act, 1867, is impressive. It includes broad power to make laws with respect to “the regulation of trade and commerce” (not just inter-provincial trade), “banking, incorporation of banks, and the issue of paper money” (that is, control of monetary policy), raising money by any mode of taxation (that is, control of fiscal policy and with it, on one view, the controversial power to spend money on matters that fall within provincial jurisdiction), defence (in response to the perceived need to provide collective security), and the criminal law (thus establishing national standards of justice and the power to appoint judges even in provincial superior courts).24 All of these were examples of the general authority, to cite the formulation used in the Quebec Resolutions, “to make laws for the peace, welfare, and good government” of the country.25
Macdonald’s criticism of the U.S. Constitution notwithstanding, the delegates to the Quebec Conference also took care to include what, in American constitutionalism, is called a supremacy clause—a rule to deal with cases in which federal and state legislation collide. The version in the Quebec Resolutions reads: “In regard to all subjects over which jurisdiction belongs to both the General and Local Legislatures, the laws of the General Parliament shall control and supersede those made by the Local Legislature, and the latter shall be void so far as they are repugnant to, or inconsistent with, the former.”26 The basic rule, in other words, is that in the event that two laws—one federal and one provincial—collide, the federal claim prevails. Consigned to the category of “miscellaneous” provisions passed at Quebec, this supremacy clause supplied a general line of “defence” to accompany the federal government’s “offence”—the capacious list of subjects on which it had exclusive jurisdiction.
As if there were not enough, the Quebec Resolutions also provided the federal government with two open-ended constitutional instruments that could be used to de-rail or veto unwelcome provincial legislation. The power of reservation permitted a provincial Lieutenant-Governor to withhold royal assent from provincial bills so as to prevent them from having the force of law. Disallowance effectively permitted the federal (p. 91) government to veto any piece of provincial legislation within a year of enactment. These veto powers did not appear out of thin air. They were miniature versions of the same veto powers that the Imperial Government could exercise over its colonial governments. As Macdonald put it in the Confederation Debates: “The General Government assumes towards the local governments precisely the same position as the Imperial Government holds with respect to each of the colonies now.” One level is superior, the other “subordinate.”27
On the basis of this sort of evidence—broad legislative powers, supremacy in the case of jurisdictional conflict, and unlimited federal veto powers—many commentators have concluded that the Confederation settlement tilted strongly towards a form of high centralism. Indeed, in the oft-quoted formulation of K.C. Wheare, Canada is really not a federal state at all; it is, at best, “quasi-federal.”28 If additional evidence were needed to clinch this characterization, it is supplied by the vigorous opposition voiced by those actors, both in Canada and the Maritimes, who rejected the Quebec plan on the grounds that it would undermine and overwhelm local legislatures.29
In fact, however, this interpretation overstates the centralism built into the Constitution Act, 1867 in at least three ways. First, it is true that the constitutional division of powers assigned the lion’s share of legislative powers to the federal government, and it is certainly true as well that Ottawa had broad authority and capacity to mould fiscal and monetary policy. Yet this does not mean that provincial governments would be little more than glorified municipalities. After all, the provinces were assigned responsibility for such matters as education (which was, already by the 1860s, a significant policy field),30 property and civil rights (defended by supporters of Confederation as the basis for protecting cultural diversity, especially the civil law tradition in Quebec),31 the management and sale of public lands (the principal source of revenue for provincial governments at the time),32 and hospitals (which, though less important in the 1860s, soon evolved into broader responsibility for healthcare). Beyond this, the provinces shared responsibility for agriculture and immigration (which provided leverage in two policy areas central to the nation-building objectives of the Confederation plan). Taken (p. 92) together, these legislative powers provided provincial governments with ample constitutional arguments to claim significant legislative space for themselves after 1867.
Second, the image of a federal constitutional order in which the national government is superior and the provincial governments subordinate is an unhelpful caricature. For reasons that are obscure, the supremacy clause (which was one potential tool of federal domination embedded in the Quebec Resolutions) was removed from the constitutional plan during the drafting process in London.33 For reasons that are equally opaque, what appeared in the Constitution Act, 1867 instead was a clear statement that, within their respective jurisdictional spheres, both Ottawa and the provinces enjoyed “exclusive” legislative authority.34 Whether the constitutional drafters understood the full implications of this statement is unclear. What is clear is that those actors who, post-1867, began to agitate for provincial autonomy or provincial rights seized on this formulation to challenge the idea that the Canadian constitutional order was a hierarchical arrangement in which the federal government was superior and the provinces subordinate. In their view, the assignment of “exclusive” legislative authority to the provinces demonstrated a commitment to the federal principle, according to which the two levels of government are constitutionally “co-equal” or coordinate, each enjoying autonomy or sovereignty to legislate on those matters assigned to it.35
To be sure, this interpretation of co-equal sovereignty was difficult to square with the existence of the veto powers of disallowance and reservation, which apparently permitted precisely the sort of interference that the provincial autonomists claimed was inconsistent with the federal principle. This explains, third, why the provincial autonomists devoted significant political and intellectual resources to disabling the veto powers in the years after 1867. In fact, the Imperial analogy Macdonald used to describe the federal veto powers was rather hollow from the outset because, by the 1860s, London had largely abandoned their use. Everyone understood that the Imperial vetoes were an affront to colonial self-government, which is exactly the argument the provincial autonomists deployed effectively to undercut the federal government’s use of disallowance and reservation post-1867. Besides, successive federal governments quickly learned that they did not necessarily want to be dragged into thorny local disputes—concerning minority education rights, for example—by striking down contentious provincial legislation. The result is that, reasonably soon after Confederation, both reservation and disallowance became tainted. Reservation was used on a regular basis only for about a decade; disallowance was deployed with some frequency as a jurisdictional veto until about 1890, then quickly abandoned. Although both veto powers remain on the constitutional (p. 93) books, it is now almost unimaginable that they would be used as a constitutional remedy, especially when judicial review is available as an alternative.36
What does this characterization of the constitutional origins of Canadian federalism have to do with constitutional longevity? In her sweeping account of the history and dynamics of Canadian public policy, Carolyn Tuohy has argued that what distinguishes the Canadian policy process is “its quintessential ambivalence,” which she defines as a system that “legitimizes competing principles” and that allows “principles to co-exist in a context of constitutional and institutional ambiguity.” The basic principles may pull “in competing directions,” but their common legitimacy means that it is difficult to embrace some and utterly reject others; however awkward the fit, the dyads of state and market, national and regional, individual and collective remain in dynamic tension with each other.37
Building on Tuohy’s insight, I want to suggest that competing but co-existing principles—what we might term “ambivalence”—was embedded in the constitutional design of Canadian federalism from the outset. Rather than endorsing one (and only one) authoritative view of federalism, the Confederation settlement embodied two quite different visions. Competitive and contested, these different visions of federalism nevertheless had the effect of producing the constitutional flexibility necessary to adjust to significant political, social, and economic change. Because both centralized and de-centralized conceptions of federalism were constitutionally embedded, it was possible to change policy direction without necessarily engaging basic questions of constitutional legitimacy or creating the need to destroy the constitutional structure (though we have come close). Moreover, the fact that competing principles were equally legitimate meant that there was also a limit on the extent of change that could be accommodated. Change, even quite massive change, could occur to Canada’s federal system, but none of it required (or allowed) gutting the constitutional structure. Far from being a pathological element in Canadian constitutionalism, ambivalence by this interpretation is actually a salutary design feature. By permitting a significant amount of constitutional flexibility in response to political and social change, it has contributed significantly to the longevity of Canada’s constitution.38
Nor are the federal features of the Canadian constitutional order unique in their tolerance of constitutional ambivalence. In the Secession Reference Case (1998),39 the Supreme Court of Canada identified the principle of democracy as one of the four pillars of Canadian constitutionalism. In its words, “the principle of democracy has always References(p. 94) informed the design of our constitutional structure, and continues to act as an essential interpretive consideration to this day.” Democracy was (and remains) a “baseline” from which “the framers of our Constitution” operated. “It is perhaps for this reason,” the Court speculates, “that the principle was not explicitly identified in the text of the Constitution Act, 1867 itself. To have done so might have appeared redundant, even silly to the framers”—although this seems a curious reason not to enunciate fundamental principles.40
An alternative interpretation to the one proffered by the Court is that the framers of the Constitution did not identify democracy explicitly as a principle because they were, as a group, deeply ambivalent about it. The Fathers clearly and unequivocally embraced the idea of responsible self-government: the fundamental institutional principle that the Executive should be drawn from, and accountable to, the legislature. That is one meaning of the terse and deeply encoded statement in the preamble to the Constitution Act, 1867 that Canada would have “a constitution similar in principle to that of the United Kingdom.” As the framers understood it, responsible self-government entailed two commitments. The first is that the House of Commons had to be sufficiently democratic to establish its legitimacy as the “popular” branch; this is one reason the principle of “representation by population” fit so neatly as part of the Confederation plan. The second commitment is that Parliament, as the central institution of governance, had to be carefully constructed so as to create a fine balance between the many and varied social interests, classes, regions, and communities that comprised British North American society. Parliament was sovereign precisely because it was the one place in which all social actors or “estates” were represented. The dilemma is that these requirements, electoral and institutional, pulled in different directions. The lower house had to represent the people as a whole, but it couldn’t be too democratic for fear that American-style “universal democracy”41 and “mob rule”42 would undermine the institutional balance of interests preserved by Parliament.
Macdonald articulated this ambivalence explicitly in the Canadian legislative assembly: “In settling the constitution of the lower house, that which peculiarly represents the people, it was agreed that the principle of representation based on population should be adopted, and the mode of applying that principle is fully developed in these resolutions.” Such is the logic, derived from a principle of equality, that sustains standard liberal accounts of representation. But he proceeded, in the very next breath, to reassure his fellow parliamentarians that, when he spoke of “representation by population, the house will of course understand that universal suffrage is not in any way sanctioned, or admitted by these resolutions, as the basis on which the constitution of the popular branch should rest.”43 Take democracy (or equality) too far, in other words, and the “calm and References(p. 95) deliberate judgments of the people, as expressed through their representatives” threatens to degenerate into “a mere form and cover to tyranny.”44
No national institution better illustrates this democratic ambivalence than the Senate, the upper house created in imitation of the British House of Lords. The Senate’s remit was defined in several different ways in the debates surrounding the Confederation proposal. One purpose was to apply “sober second thought”45 to ill-considered or impetuous legislation passed by the House of Commons. A second was to provide a more substantial voice for regional interests otherwise overwhelmed by population-based representation in the House of Commons.46 A third, underscored by a sizeable property qualification, was “to represent the principle of property. The rights of the minority must be protected,” Macdonald argued at Quebec, “and the rich are always fewer in number than the poor.”47 These functions, but especially the last, led the architects to make the Senate an appointed rather than an elected body—even (or especially) if that characteristic reduced its leverage over the House. As Macdonald described the parliamentary order: “(The Senate) must be an independent house, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch and preventing any hasty or ill-considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and well understood wishes of the people.”48 As an appointed body, the Senate was simultaneously enabled and constrained. Which is to say that the Senate was deliberately designed to allow competing principles—democratic and anti-democratic—to co-exist over the long term. And, indeed, despite many attempts either to reform or abolish it, the Senate remains largely intact—sustained by the ambivalence with which it was designed.
The imperative to protect minority (often called group) rights, the third constitutional pillar, was one of the main drivers that produced Confederation, especially in the province of Canada where 25 years of acrimony between French and English, Catholic and Protestant, majority and minority had convinced most members of the political elite that the status quo was unsustainable. Considering the extent to which the issue preoccupied pre-Confederation Canadian politics, the provisions for protecting minority rights, first in the Quebec Resolutions, then in the Constitution Act, 1867 were actually quite modest. The use of either French or English was guaranteed in Parliament whereas the use of English was protected in the Quebec Assembly.49 French could be used in federal courts just as the English minority in Quebec could use English to plead cases in that province.50 And the Resolutions promised reciprocal rights to Ontario Catholics (p. 96) and Quebec Protestants with respect to denominational schools.51 But it is striking that no Acadian (the French, Catholic minority in New Brunswick) was present at the Quebec Conference to press the case for minority religious and linguistic rights in the Maritimes, and although the possibility of western expansion was clearly on the minds of some of the most prominent Fathers, the idea of a truly national dualism received little air time at Quebec.52
One explanation for the modest scope of these provisions is that most French Canadians, concentrated in Quebec, did not identify strongly with their co-linguists and co-religionists in the rest of the country, because they believed that the best hope for French, Catholic Canada rested with the survival of Quebec.53 As a consequence, they reasoned that robust provincial autonomy overseen by a legislature in which francophones were a majority was the most efficient way to protect their position and their rights as a minority within the new Canada. But this move—protecting a minority by transforming it into a majority—introduced an element of ambivalence into the Canadian understanding of rights because it complicated the conventional understanding of rights as vulnerable to, and threatened by, democratic majorities. The architects of 1867 were certainly familiar with and embraced the importance of protecting individual rights. Most of them assumed the existence of certain individual rights and civil liberties protected by the British constitution and the common law, such as the right to a jury trial in serious criminal matters, access to the writ of habeas corpus to test the validity of imprisonment, and the right to hold and enjoy property. These rights had been elaborated over the centuries, and although subject to some limitation by legislatures had a relatively well-defined content. But they also understood, thanks in part to their experience in dealing with questions of language and religion, that legislatures (as in the case of Quebec) could protect rights (both individual and collective) as well as violate them. Thus, rights pulled in both directions—both towards and away from legislatures.54 In a word, the goal was to redeem “constitutional liberty”55—a versatile (and I would add, ambivalent) ideal that placed the onus for striking the balance between majority and minority and between public good and private rights on the institutions and structures (p. 97) of government as a whole; and that made rights protection more about creating “dialogue” among institutions than on erecting bright-line boundaries between them.
I have argued that constitutional ambivalence—competing principles co-existing in the same constitutional structure—helps to explain the longevity of Canada’s constitution. But is the converse true as well? If constitutional ambivalence was absent in 1867, did this absence de-stabilize the constitution in any significant way? To answer this question, let us turn to two final architectural features—the locus of sovereignty and the place of Indigenous peoples.
Constitution-making raises questions of sovereignty—both legal and political—because it both allocates coercive governmental power in authoritative ways and because it requires some agreement about who may legitimately make (and remake) such authoritative decisions. In other words, sovereignty is both constituted (it defines what the rules are and how they will be enforced) and constituent (it defines who gets to make the rules). The debates surrounding Confederation had lots to say about what was constituted by the Quebec Resolutions and the Constitution Act, 1867. I have already summarized some of these debates, grouped together under the themes of federalism, democracy, and rights. About sovereignty in the constituent sense, however, about who may make (or re-make, or unmake) the constitution, there was much less discussion. One strategy was simply to avoid engaging the question of where the legitimate authority to make and amend the fundamental law is lodged. Some Confederationists argued that it was actually unnecessary to talk about the source of constitutional power because the constituent power in this sense rested with the Queen in the Imperial Parliament. As one Canadian legislator put it: “We have not the power to (make constitutional changes for British North America). We merely propose to address Her Majesty on the subject. The imperial parliament alone has that power.”56
But this argument was transparently disingenuous. It was clear that the British authorities were not going to act on a constitutional proposal without a clear mandate from the colonies themselves. Indeed, the Quebec Resolutions contained clear instructions to the effect that “the sanction of the imperial and local parliaments shall be sought for the union of the provinces, on the principles adopted by the conference.”57 The point is that everyone involved in the Confederation initiative agreed that some form of local consent was necessary for the initiative to be considered legitimate. The only real question, therefore, was how this local sanction would be obtained and registered. In the (p. 98) event, a lively (if often desultory) debate rippled across British North America between those who thought legislative ratification in each province was sufficient to meet the requirement of consent and those who believed that some more direct, focused, and extra-legislative ratification was required in each province—whether in the form of a general election, a referendum, or a special convention.58 This discussion became, in effect, a proxy for a debate about the relative virtues of parliamentary as opposed to popular sovereignty.59 At one extreme were those, like the prominent Bleu (or Conservative) legislator Joseph Cauchon, who objected strenuously to the “democratic-republican” idea that would “deny one of the most essential and fundamental principles of the British Constitution—that is to say, that parliament may change the constitution without special appeals to the electoral body, and without recourse to popular conventions.”60 At the other extreme were those, like the Canadian legislator James O’Halloran, who put the case for extra-legislative consent this way: “When we assume the power to deal with this question, to change the whole system of government, to effect a revolution, peaceful though it be, without reference to the will of the people of this country, we arrogate to ourselves a right never conferred upon us, and our act is a usurpation.”61 And, in fact, the processes by which the Quebec Resolutions were ratified (or in the case of Prince Edward Island and Newfoundland, rejected) were similarly varied (although it should be noted that none of the provinces, unlike the American states in 1787, created special, extra-legislative conventions to consider the resolutions).
Yet for all their variety, these debates did not really get to the heart of constituent sovereignty. As much as participants talked about how the people should register their consent, no one seems to have thought to ask just who the people are. These are different questions. The first, “how” question seized the attention of those involved in making the constitution because it had an immediate, “next steps” quality about it. The second, “who” question was less immediate (though no less important) because it concerned re-making (or amending) the constitution in the future. By whom may the constitution be changed? All of the people of all of the provinces? Most of the people of most of the provinces? Most of the provinces but always Quebec? Most of the provinces with or without Quebec? A national majority? Neither the Quebec Resolutions nor the Constitution Act, 1867 contained rules that govern the amending process. And neither provided clear principles of constituent sovereignty that could be used to create rules in the absence of an explicit amending formula.
The absence of such principles did not stop political actors post-Confederation from conjuring them. If the provinces had negotiated the terms of union in the first instance, (p. 99) perhaps they (and only they) should have the power to change the terms thereafter; this is the nub of what came to be known as the compact theory.62 Alternatively, perhaps the union represents less a compact among provinces than a pact between French and English, the country’s founding deux nations, both of which would have to agree on significant constitutional changes to the pact.63 Or perhaps instead of focusing on who created the union, one should take one’s bearings from what was created by the union. This was the tack taken in the Patriation Reference case of 1981, in which the Supreme Court of Canada divined a norm governing amendment from the existence of the federal principle.64 Although this decision cleared the way, in 1982, for a constitutional renovation that includes a multi-dimensional and complex amending formula, Quebec’s unwillingness to ratify the Constitution Act, 1982 remains a scar on the Canadian body politic. The point is simply this: the architects of 1867 found a way to inter-weave the principles of federalism, democracy, and the protection of minorities in a way that created enduring but ultimately workable constitutional ambivalence. Their record with respect to the question of political sovereignty is much less positive. Not only did they not marry competing principles of sovereignty in a way that produced co-existence, the more serious criticism is that they neglected to pose the question of constituent sovereignty at all, with damaging results.
The other signal design failure concerns the place of Indigenous peoples. For ambivalence to work as a constitutional design principle, the actors responsible for the design decisions have to recognize and acknowledge the legitimacy of the competing principles involved. If one set of constitutional principles is not included in the discussion, or if there is a wide gulf in perceived legitimacy between potentially competing principles, then constitutional unilateralism, rather than ambivalence, will result. In fact, this sort of unilateralism describes the constitutional approach adopted with respect to Indigenous peoples in the period leading to Confederation. As John Borrows and others have shown, there were deep traditions of Indigenous constitutionalism from which the Fathers of Confederation could have drawn or against which they could have measured their own constitutional commitments.65 But none of this occurred, in part because there were no Indigenous representatives at any of the pre-Confederation meetings.66 Indeed, in many ways Indigenous peoples were something of an after-thought in the grand scheme of constitutional things. On the one hand, the subject line “Indians, and lands reserved for the Indians” was not on the original jurisdictional list prepared in advance of the Quebec Conference by the Canadian delegation; it was added by (p. 100) Macdonald, apparently between daily sessions.67 On the other, the place of Indigenous peoples in the constitutional order elicited almost no discussion or debate whatsoever. Indeed, over the course of the three-week debate about the Confederation plan held in the Canadian legislative assembly, the representatives referred as frequently to the State of Indiana as they did to Indians.68 In short Indigenous peoples were subjects (rather than equal citizens), and additional subjects of legislative authority (rather than essential sources of constitutional meaning). One hundred and fifty years later, this legacy remains arguably the most serious blot on the Canadian constitutional project.
At one of the first sessions of the Quebec Conference, John A. Macdonald explained to the delegates that one of the virtues of the schematic plan before them was its elasticity. “(Our constitution) should be a mere skeleton and framework that would not bind us down. We have now all the elasticity which has kept England together.”69 Macdonald was right, though for the wrong reasons. The Canadian Constitution has been remarkably elastic, in ways that have allowed it to adapt to, and hence endure, significant social, political, and economic change. The source of this elasticity, however, is not so much its skeletal design (as Macdonald suggested) as the ambivalence that lies at its core. For Macdonald the “less is more” nature of the Quebec plan meant that future leaders would have relative autonomy to act in ways they thought best; because it was so skeletal, it would not “bind us down” to any fixed and immovable principles. But in fact Canadians have been “bound” by their constitution—for some 150 (often contentious) years. Far from being principle shy, the Confederation plan embedded and legitimized a series of competing principles which, taken together, created a system of what I have called constitutionalized ambivalence. The Canadian constitutional architects did not supply, nor did they intend to supply, a toolkit to resolve the tensions among these competing principles. What they did do was structure constitutional politics in ways that locked in the co-existence of these competing, but also mutually entangling, principles. The echoes of these design decisions remain with us, some of which reverberate on the pages of this Handbook. That is why 1867 matters for anyone who wants to understand the Canadian Constitution.
- Ajzenstat, Janet. The Canadian Founding: John Locke and Parliament. Montreal and Kingston: MCQUP, 2007.
- Ajzenstat, Janet, Paul Romney, Ian Gentles, and William D. Gairdner, eds. Canada’s Founding Debates. Toronto: Stoddart, 1999.
- Borrows, John. Canada’s Indigenous Constitution. Toronto: UTP, 2010.
- Brouillet, Eugénie. La Négation de la Nation. Montreal: Septentrion, 2005.
- Brouillet, Eugénie, Alain-G. Gagnon, and Guy Laforest, eds. La Conférence de Québec de 1864: 150 Ans Plus Tard. Québec: Presses de l’Université Laval, 2016.
- Browne, G.P. Documents on the Confederation of British North America. Toronto: McClelland and Stewart, 1969.
- Buckner, Phillip. “The Maritimes and Confederation: A Reassessment.” Canadian Historical Review 71 (1990): 1.
- Canada, Legislative Assembly. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces. Quebec: Hunter, Rose and Co., 1865.
- Cook, Ramsay. Canada and the French-Canadian Question. Toronto: Macmillan, 1966.
- Creighton, Donald. British North America at Confederation: A Study Prepared for the Royal Commission on Dominion Provincial Relations. Ottawa: Queen’s Printer, 1938 (reprinted 1963).
- Creighton, Donald. The Road to Confederation: The Emergence of Canada, 1863–1867. Toronto: Macmillan, 1964.
- Dumont, Fernand. Genèse de la société québécoise. Montreal: Boréal, 1996.
- Elkins, Zachary, Tom Ginsburg, and James Melton. The Endurance of National Constitutions. Cambridge: CUP 2009.
- Lamonde, Yvan. The Social History of Ideas in Quebec, 1760–1896. Trans. Phyllis Aronoff and Howard Scott. Montreal and Kingston: MCQUP, 2013.
- Martin, Chester. “The British Policy in Canadian Confederation.” Canadian Historical Review 13 (1932): 5.
- Martin, Ged. Britain and the Origins of the Canadian Confederation. Basingstoke: Macmillan, 1995.
- Moore, Christopher. 1867: How the Fathers Made a Deal. Toronto: McClelland and Stewart, 1997.
- Morton, W.L. The Critical Years: The Union of British North America, 1857–1873. Toronto: McClelland and Stewart, 1964.
- Romney, Paul. Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation. Toronto: UTP, 1999.
- Russell, Peter H. Constitutional Odyssey. 2nd ed. Toronto: UTP, 2004.
- Ryerson, Stanley B. Unequal Union: Confederation and the Roots of Conflict in the Canadas, 1815–1873. Toronto: Progress Books, 1973.
- Silver, A.I. The French-Canadian Idea of Confederation, 1864–1900. Toronto: UTP, 1982.
- Supreme Court of Canada, Reference Re Secession of Quebec (1998) 2 S.C.R.
- Tuohy, Carolyn J. Policy and Politics in Canada: Institutionalized Ambivalence. Philadelphia: Temple, 1992.
- Vipond, Robert C. Liberty and Community: Canadian Federalism and the Failure of the Constitution. Albany: SUNY, 1991.
- Waite, P.B. The Life and Times of Confederation; Politics, Newspapers, and the Union of British North America, 1864–1867. Toronto: UTP, 1962.(p. 102)
2 Ibid., ch 6.
3 See, for instance, G.P. Browne, Documents on the Confederation of British North America (McClelland and Stewart 1969); Phillip Buckner, “The Maritimes and Confederation: A Reassessment” (1990) 71 CHR 1; and J.M.S. Careless, Canada: A Story of Challenge (Macmillan 1963).
5 Ibid., 15.
6 Buckner, Maritimes and Confederation, above (n 3) 12.
7 Creighton, above (n 4) 11.
9 Ibid., ch 3.
10 Ibid., 73.
11 George Brown, cited in Owram, ibid., 76.
14 Ibid., 37. See also Yvan Lamonde, The Social History of Ideas in Quebec, 1760–1896 (Phyllis Aronoff tr, McGill-Queen’s Press, 2013) ch 10 & 12.
15 Canada, Legislative Assembly, Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Hunter, Rose and Company, 1865) 55 (G.-E. Cartier). [hereinafter Confederation Debates].
16 Ibid., 55.
17 Ibid., 131.
18 Creighton, British North America at Confederation, above (n 4) 10.
19 Chester Martin, “The British Policy in Canadian Confederation” (1932) 13 CHR 5. See also Phillip Buckner, “L ’élaboration de la constitution canadienne au sein du monde britannique,” in Eugénie Brouillet, Alain-G. Gagnon, and Guy Laforest (eds), La Conférence de Quebec de 1864: 150 ans plus tard (Presses de l’Université Laval, 2016) 71.
22 Creighton, British North America at Confederation, above (n 4) 51.
23 Confederation Debates above (n 15) 33 (Macdonald).
24 Compare Quebec Resolutions (#29) in Browne (ed), Documents above (n 3) with Constitution Act, 1867 (section 91).
25 The phrase “peace, welfare, and good government” (Quebec Resolutions in Browne (ed), Documents, above (n 3)) was changed to “peace, order and good government” in the Constitution Act, 1867. Both phrases were commonly used in imperial statutes at the time.
26 See Quebec Resolutions in Browne (ed), Documents, above (n 3) (#45).
27 Confederation Debates, above (n 15) 42. The powers of reservation and disallowance are set out in the Quebec Resolutions in Browne (ed), Documents, above (n 3) #50 and #51, and in the Constitution Act, 1867 in sections 56 and 90.
29 See, for example, Silver, French-Canadian Idea of Confederation, above (n 13) ch 2; Buckner, “The Maritimes and Confederation,” above (n 3); and Robert C. Vipond, “1787 and 1867: The Federal Principle and Canadian Confederation Reconsidered” (1989) 22 CJPS 9–12. See also Éric Bédard, “Éviter ce ‘gouffre d’inique liberté’. Le fédéralisme centralisateur de Joseph-Edouard Cauchon,” in Brouillet, Gagnon, and Laforest (eds), La Conférence de Québec de 1864, above (n 19) 109.
33 The basic principle underlying the supremacy clause resurfaced in a weaker and more limited form in the context of the subjects of immigration and agriculture, two policy areas over which federal and provincial governments share responsibility. See Constitution Act, 1867, s. 95.
34 Constitution Act, 1867, s. 91 and s. 92. The addition of the word “exclusive” appeared only in the final drafts of the Act, suggesting that it was included as a matter of legal form rather than as a political claim. Whatever its origins, its inclusion had a profound effect on subsequent debate in Canada.
35 See Vipond, 1787 and 1867, above (n 29).
38 This interpretation runs parallel to, and generally supports, the argument of Elkins, Ginsburg, and Melton in The Endurance of National Constitutions above (n 1) who also emphasize the connection between flexibility and constitutional endurance. However, my emphasis on the way this flexibility is achieved through ambivalence is somewhat different. See Elkins, Ginsburg, and Melton, Endurance of National Constitutions above (n 1) 81–83.
41 Confederation Debates above (n 15) 143 (McGee).
42 Confederation Debates above (n 15) 59 (Cartier).
43 Confederation Debates above (n 15) 35 (Macdonald).
44 Confederation Debates above (n 15) 1004 (Macdonald).
45 Confederation Debates above (n 15) 35 (Macdonald).
46 Macdonald summarizes the case for extended regional representation in the Senate in his main speech during the Confederation Debates. See Confederation Debates above (n 15) 35–38.
47 Browne, Documents above (n 3) 98.
48 Confederation Debates above (n 15) 36 (Macdonald).
49 Quebec Resolutions in Browne (ed) Documents, above (n 3) (#46); Constitution Act, 1867 s. 133.
50 Quebec Resolutions in Browne (ed) Documents, above (n 3) (#46); Constitution Act, 1867 s. 133.
51 Quebec Resolutions in Browne (ed) Documents, above (n 3) (#43.6); Constitution Act, 1867 s. 93.2.
52 See Gaétan Migneault, “Le Canada français et la Confédération: les Acadiens du Nouveau-Brunswick,” in Jean-François Caron and Marcel Martel (eds), Le Canada français et la Confédération (Presses de l’Université Laval, 2016). In London, constitutional protection of minority school rights was extended to apply in all provinces to denominational schools established in law after as well as before union. See Constitution Act, 1867, s. 93:1, 3.
54 This paragraph draws on David R. Cameron, Jacqueline D. Krikorian, and Robert C. Vipond, “Revisiting the 1865 Canadian Debates on Confederation: Rights and the Constitution,” Canada Watch (York University, Spring 2016) 13. The larger idea of rights protection is developed in Richard Risk and Robert C. Vipond, “Rights Talk in Canada in the Late Nineteenth Century: ‘The Good Sense and Right Feeling of the People’ ” (1996) 14 Law and History Review 1.
55 For numerous examples showing how the term constitutional liberty was used in the debates over Confederation, see Janet Ajzenstat, Paul Romney, Ian Gentles, and William D. Gairdner (eds), Canada’s Founding Debates (Stoddart, 1999) Part One.
56 Confederation Debates, above (n 15) 219 (Christie).
57 Quebec Resolutions in Browne (ed) Documents, above (n 3) (#70) [emphasis added].
58 See Ajzenstat, Romney, Gentles and Gairdner, Canada’s Founding Debates above (n 55) Part Five for a good sample of opinion drawn from across British North America.
59 This debate has been reproduced in recent scholarship about Confederation. Contrast Janet Ajzenstat, The Canadian Founding: John Locke and Parliament (MQUP, 2007) ch 2 with Peter H. Russell, Constitutional Odyssey (2nd ed, University of Toronto Press, 2004) ch 3.
60 Confederation Debates, above (n 15) 579 (Cauchon).
61 Confederation Debates, above (n 15) 792 (O’Halloran).
63 See Cook, Provincial Autonomy above (n 62) ch 5 and Richard Arès, Dossier sur le pacte fédératif de 1867 (Bellarmin, 1967).
66 This point supports the argument advanced by Elkins, Ginsburg, and Melton that inclusion, participation in the formation of a constitution, helps to generate allegiance to a constitution and so is an important factor in explaining constitutional durability. See Elkins, Ginsburg, and Melton, above (n 1) 78–81.
67 The Canadian delegation arrived at the Quebec Conference with a draft constitution, which became the basis of the Quebec Resolutions. The first draft contained no reference to Indigenous peoples whatsoever. The second draft, the original of which shows various annotations in Macdonald’s handwriting, does. Compare Browne, Documents, above (n 3) 81 (October 24) and 85 (October 25). The various drafts, showing changes, are preserved in the National Archives of Canada. The first draft is simply entitled “Resolutions” MG 26, vol 53, Series A1 (a), 21313–21317. The second version (with Macdonald’s annotations) bears the same title. It can be found at MG 26, vol 53, Series A1 (a), 18142–18155.
68 Cameron, Krikorian, and Vipond, “Revisiting the 1865 Canadian Debates,” above (n 54) 14.
69 Browne, Documents, above (n 3) 98.